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REGD.NO.D.L. NOW72000305 रजिस्ट्री से. डॉ. एल. ( एन ) (04/0007/2003-05

: :

भारत का राजपत्र The Gazette of India

प्राधिकार से प्रकाशित

PUBLISHED BY AUTHORITY

साप्ताहिक

WEEKLY

No.311

:-- नई दिल्ली, जुलाई29 अगस्त 4, 2007 , शनिवार/ श्रावण - आषण 13 , 1929 NEW DELHL, JULY 29 AUGUST 4, 2007 , SATURDAY /SRAVANA7-SRAVANA 13, 1929 इस भाग में भिन्न पृष्ठ संख्या दी जाती है जिससे कि यह पृणक संकलन के रूप में रखा जा सके Separate Paging is given to this Part in order that it rony be filed as a separate compilation

भान [[ खण्ड ३ जप-वाण्ड (11) PART IISection 3 Sub-section (H)

भारत सरकार के मंत्रालयों ( रक्षा मंत्रालय को छोड़कर ) द्वारा जारी किए गए साविधिक आदेश और अधिसूचनाएं Statutory Orders and Notifications Issued by the Ministries of the Government of Indla

(Other than the Ministry of Defence)

वित्त मंत्रालय

अगला आदेश होने तक , जो भी पहले हो , यूको बैंक के अध्यक्ष एवं प्रबंध निदेशक के रूप में नियुक्त करती है ।

( विचीय सेवाएं विध्ग )

नई दिल्ली , 27 जुलाई , 2007

[फा. सं. 9/24/2006 - बीओ -1 ) जी. बी. सिंह , उप त्तचिव

MINISTRY OF FINANCE

(Department ofFinancial Services)

NowDelhi , the 27th July ,2007

8.0.2127 In exercise of the powers.conferred by clause ( a ) of sub-section ( 3 ) of Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings ) Act, 1970/1980 read with sub -clause ( 1 ) of clause 3 and sub -clause ( 1 ) of clause & of the Nationalized Banks (Management and Miscellaneous Provisions ) Schcome, 1970/1980 , the Central Government, in consultation with का.आ. 2127 - राष्ट्रीयकृत बैंक ( प्रबंध एवं प्रकीर्ण उपर्धध) स्कीम, 1970/1980 के खण्ड 3 के तप साण्ड ( 1 ) और खण्ड 8 के उप खण्ड ( 1 ) के साथ पठित बैंककारी कंपनी ( उपक्रमों का अर्जन एवं अंतरणः अधिनियम , 1970/1980 की भारा 9 की उपधारा 3 के खण्ड ( क ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्रीय सरकार, एतद्‌द्वारा. भारतीय रिजर्व बैंक के परामर्श से , वर्तमान में इलाहानाद बैंक के कार्यपालक निदेशक श्री एस. के. गोयल ( जन्म तिथि 22 9-1953 ) को । अगस्त , 2007 को या उससे बाद उनके पदभार ग्रहण करने की तारीख से और 30-9-2010 तक , अर्थात् महीने के अंतिम दिन , जिस दिन से अधिवार्षिता की आयु पूरी करेंगे अम्यवा

(4815)

3218 GUO - 1 4816

PART 1 SFC. 3 ( ⅱ ) ] THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 , 1929

MINISTRY OF HEALTH AND FAMILY WELFARE (Departroent ofHealth)

New Delhi , the 12th July,2007 the Reserve Bank of India . hereby appoints Shri S K. Goel (DOB221950 ) presently Executive Director , Allahabad Bank as Chairman & Managing Director . UCO Bank fora period from the date of bis taking charge of the post on or after listAugust, 2007 and to 30-9-2010 ie the last day af the month in which he would alumin the age of superannuation or watil further ordas , whichever is eatlier

( F. No. 9/24/2006-BO- 1

GB. SINGH . Dy.Sy

S.O. 2128.- Inexercise ofthe powers conterred by sub-section (2 ) of the Section 11 of the Indian Medical Council Act 1956 ( 102 of 1956 ) , the Central Government . after consulting the Medical Council of India , hereby makes the following further anvendments in the First Scheduleto The said Act . namely :-

In the sand Schedule--

स्वास्थ्यऔर परिवार कल्याण मंत्रालय ( स्वास्थ्य विभाग)

नई दिल्ली, 12 जुलाई , 2007

( a ) against Delhi University " , under the heading RecognizedMedical Qualification" ( hereinafror referred to as column (2 ) ] , after the last entry and entry relating theiern under the heading Abbreviation for Registration ( hereinafter referred in ascutumn 1311. Ike following shall he inserted. aamely:

TABLE

(2)

का.आ. 2128.- भारतीय आयुर्विज्ञान परिषद् अधिनियम, 1956 1:53 का 102 ) की धास ।। की उप धारा ( 1 ) द्वारा प्रदत्ता गऋक्तियों अप्रयोग करते हुए केन्द्र सरकार भारतीथ आयुर्विज्ञान परियर से एगशं करने के याद एत‌द्भास उक्त अधिनियम की प्रथम अनुसू‌द्धों में निमलिनऔर संशोधन करती है , अर्थात:

MPIO.B.G.)

उक्त अनुसूची में-

"Doctor ut Modiine (Obst . & Gynae. "

(This shall be a recognize.t medical qualification pramçıl by Delhi Emmersiay respect of stukients trained al Safdarjung Hospital , New

Delhi

( के. " दिल्ली विश्वविद्यालय " के सामने ' मान्यता प्राप्त युर्विज्ञान अर्हता' ! इसकं याद स्तंभ ( 2 ) के रूप में संदर्भित ] शीर्ष के अन्तर्गत अन्तिम प्रविष्टि और पंजीकरण के लिए मंबंषण' [इस बाद सांभ के रूप में संदांपत ] शोप के अर्न्तगत उसत्तं मंचद्ध प्रविष्टि के बाद, निम्नलिखित रखा जाएगा, अधांत्:-

"Diploma in Obs & Gynae."

सारणी

(2)

(3)

एम. डी. ( आ. बी. जो. )

D.GO. (This shall he a recognized medical qualification when granted by Delhi University int inspect of students trained at SaldarjungHospital . New Delhi .

डाक्टर ऑफ मेडिसिन, ' प्रसूति एवं स्त्री रोग विज्ञान )

[No. U. ( 2012/14/ 307- MEIP- PL.) S K. MISHRA . Under Secy.

पोत्त परिवहन , सड़क परिवहन और राजमार्ग मंत्रालय ( यह एक मान्यता प्राप्त आयुर्विज्ञान अर्हता होनी यदि यह सफदरजंग अस्पताल , नई दिल्ली में प्रशिक्षित छात्रों के संबंध में दिल्ली विश्व विद्यालय द्वारा प्रदान की गई होः

( पोत परिवहन विभाग )

ही. जो. ओ.

{ एवापत || अनुभाग )

प्रसूति एवं स्त्री रोग विज्ञान में डिप्लांमः

नई दिल्ली, 2। जून , 2007

( यह एक मान्यता प्राप्त आयुर्विज्ञान अहंता होगी यदि यह सफदरजंग अस्पताल , नई दिल्ली में प्रशिक्षित छात्रों के संबंध में दिल्लीविश्व- विद्यालय द्वारा प्रदान की गई हो।

(सं. यू. ( 2012/ 14/2007- एम ई ( पी -1] ) पार्ट]

एस. कं. मिश्रा, अन्तर सचिव

का.आ. 2129.-फाइल सं एच -11020/ 2/ 2005 - स्थापना और 1-35019/3/2006- आर.टी.आई. के अंतर्गत जारी किए गए दिनांक 30 सितम्बर, 2005. दिनांक । सितम्बर, 2006 के का.आ से 1443 ) में अशिक आशोधन करकं तथा सामान्य खण्ड अधिनियम , 1897 (1897 का10 ) की धारा 22 के साथ पलित सूचना के अधिकार , अधिनियम, 2005 (2005 का 22 ) की धारा 19 की उपधारा ( 1 ) के अनुसरण रे , पोत परिवहन , सड़क परिवहन और राजमार्ग मंत्रालय का पांत 4817

भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

[ भाग -खण्ड (it) ]

परिवहन विभाग ( मुख्यालय ) , एक्यूद्वारा , निम्नलिखित अधिकारियों को नामांदिष्ट करता है :-

Transport Bhavan, New Delhi - 110001 as Appellate Authority ( AA ) for all matters cuncerning Administrative aspects of the Officers and Staff of the Headquarters of the Department of Shipping and all matters concerning Major Ports and Andaman Lakshadweep Harbour Works (ALHW), Tariff Authority forMajor Ports (TAMP) in place of Shri A. K. Balka

1 ) श्री पी. सी. धौमन के स्थान पर श्री राजीव गुप्ता , संयुक्त सचित्र ( पौरु परिवहन ) ( दूरभाष सं -23710189 ) ( कमररी सं. 406 ) परिवहन भवन, नई दिल्ली 110001 को अंतर्देशीय बुल परिवहन और पोत निर्माण तथा पोत मरम्मत सहित पोत परिवहन स्कंध से संबंधित सभी मामलों के संबंध में अपील अधिकारी के रूप में।

[F. No. 1-35019/2 /2006-RTT) SUBHASH CHAND , Under Secy.

कस्व मंत्रालय

नई दिल्ली, 30 जुलाई , 2007

( ii ) श्रओ अजय कुमार भल्ला के स्थान पर श्री सर्कश श्रीवास्तव, संयुक्त सचिव (पत्तन प्रशासन ) ( दूरभाष सं-23711873) (कमरा में 431 ) परिवहन्न भवन , नई दिल्ली-110001 को पोत परिवहन विभाग के मुख्यालय के अधिकारियों और कर्मचारियों के प्रशासनिक पहलुओं से संणिधित सभी मामलों और महापत्तन वासों, अंडमान लखदीप बंदरगाह निर्माण कार्य और महापत्तन प्रशुल्क प्रधिकरण से संबंधिद सभी मामलों के संबंध में अपील अधिकारी के रूप ।

[फा. सं. 1-35014/3/2006- सूचनाका अधिकार ]

सुभाष चन्द. अवर सचिव

का.आ. 2130 -केंद्रीय रेशम बोर्ड अधिनियम, 1948 ( 1948 का 6 ) की धारा 4 की उप- धारा ( 3 ) प्रदत्त शक्तियों का प्रयोग करते हुए , केंद्र सरकार , एतयु‌द्वारा उक्त अधिनियम के प्रावधानों के अध्यधीन इस अधिसूचना की तिथि से तीन वर्षों की अवधि के लिए केंद्रीय रेशम बोर्ड के सदस्य फं रूप में कार्य करने के लिए निम्नलिखि व्यक्ति का नामांकन अधिसूचित करती है ।

श्री वितारेड्‌डी श्रीनिवासा रेड्डी.

गांव बाद‌यारपल्ली,

MINISTRYOF SHIPPING, ROAD TRANSPORT AND HIGHWAYS

उपर्युक्त अधिनियम की धारा 4(3) (जे) के अंतर्गत केंद्र सरकार द्वारा नामित

मिध्यालगुड़ा मंडल,

Department of Shipping)

जिला नलगोंडा ( आंध्र प्रदेश)

[ dblishment- 11 Section)

[फा.से 25012/56/99-रेशमे] New Delhi , the21st June.2007

भूपेन्द्र सिंह , संयुक्त सचिव

MINISTRY OF TEXTIELES

New Dethi , the 30th July, 2007 S.O. 2139.-In Partial modification of5.0. 1443( E) ८३०५: September, 2005. 1st September, 2006 issued under No. 1111020/2/2005 -Est . and 35019 /3 /2006- RTI resentively and in pursuance of Sub- Section ( 1 ) of Sevda 14 of the Right to Information Act . 2005 (22 of 2006 ) read with Section 22 of the General Clauses Act. 1897 (10 of 18971, the Department of Shipping (Headquarters) . Ministry of Shipping, Road Transport & Highways hereby designales:

S.O.2130.-In exercise of the powers conferred by sub- section (3 ) of Section 4 of the Central Silk Board Act. 1948, the Central Government hereby notifies the nomination of the following person to serve as member of theCentral Silk Board for à period of three years from the Date of this poufication subject to the provisions of the saidAct.

Norminated by the

Shei Ch . SrinivasaRedkly,

MiryalgudaMandal ,

CentralGovemment under Section4( 3 )(j ) of theAcı .

Yadgartally village Nalgonda District (AP)

il Shri Rajeev Gupta, Joint Secretary (Shipping) (Tel No. 237101891 (Room No. 406) , Transport Khavan . New Delhi - 110001 as Appellate Authority ( AA) for all matters concerning Shipping Wing including Inland Water Transport (1WT) and Ship Ruilding and Ship Repair in place of Shri P. C. Dhimao .

[F. No. 25012/56/99-Silk)

BHUPENDRA SINGH, JL. Secy.

(ii) Shri Rakesh Srivastava, Joint Secretary (Admn. &Ports) ( Tel No. 2371 1873 ) ( Room No. 411 ) , 4813

THE GAZETTE OF INDIA : AUGUST 4. 3007 /SRAVANA 13 , 1920

PARI-Ser .

उपभोक्ता मामले , खाद्य और सार्वजनिक वितरण मंत्रालय

( उपभोक्ता मामले विभाग )

भारतीय मानक ब्यूरो

नईदिल्ली , 23 जुलाई, 2007

का. आ. 2131 , - भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम , 1988 के नियम ( 5 ) के उप नियम ( 6 ) के अनुसरण में भारतीय मानक ब्यूगे एत‌द्वारा अधिसूचित करता है कि निम्न विवरण वाले लाइसेन्सों को उनके आगे दर्शायी गई तारीख से रद्द कर दिया गया है :-

अनुसूची

क्रम सं. लाइसेंस नं. लाइसेन्सधारी का नाम व पतन जून,2007

01 .

8019497 मैसर्स पी. आर. रोलिंग मिल्स ( प्रा. ) लि. प्लॉट नं. एस 707 , रोड नं. 6, वि. औ. क्षेत्र , जयपुर-302 013 ( राजस्थान) 고 8793711 पैसर्स श्री अग्रसेन इण्डस्ट्रीज, ई-293 ( ए) , रोड नं. 14 वि और क्षेत्र , जयपुर-302013 (राजस्थान )

रह करने की तिथि लाइसेन्स के अंतर्गत तरतुःप्रक्रम से संबंधित भारतीय नानक का शीपंक व संबंधित ४८ पा

21 06-2007 8500 : 1991 स्ट्रक्चरल स्टोन

08-06-2007 398 ( भाग 2) : 1996 एभी एस अग्र

[सं. सीएमडी 13:13 ] ५. शं. तलवार , उप महानिदेशक ( मुहर ) MINISTRY OF CONSUMER AFFAIRS, FOODAND PUBLIC DISTRIBUTION

(Department of Consumer Affairs )

BUREAU OF INDIAN STANDARDS

New Delhi , the 23rd July, 2007

S.0.2131 - In pursuance of sub- regulation (6) of regulation & of the Bureau of Indoun Standards ( Certification ) Regulation , 1988. the Bureau of Indian Standards , hereby notifies that the licence ( 5 ) particulars of which is/are givenbelow has/have been Cancelled with effect from the date indicated:

SCHEDULE

Sl .No.

Name and Address of the Licensee Litence No (CM/L)

Jupe, 2007

01. 8719493 M/ s .P. R. Rolling Mills (Pvt. ) Limited

PlotNo.8-707, RoadNo.- 6, Vishwakarma Industrial Area Jaipur-302013 (Rajasthan) 02 8793711 M/ s . Shree Agarsen Industries E-293 (A) , Road No. 14 Vishwakarma Industrial Area, Jaipur-302 013 (Rajasthan )

Date of Cancellation Article/Process with relevant Indian Standards covered by the licence cancelled

IS8500: 1991

21-06-2007

Structural Steel

IS398 (Part 2) :1996

8-6-2007

ACSR

No. CMD /13 :13 ;

A.K. TALWAR Dy . Director General (Marks) भाग [ --खण्ड (it ) ]

4819

भारत का राजपत्र अगस्त 4, 2007/ऋवण 13 , 1929

नई दिल्ली , 23 जुलाई , 2007

का.आ. 2132.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम , 1988 के नियम 4 के उप - नियम 5 के अनुसरण में भारतीय मानक ब्यूरो एतद्‌द्वारा अधिसूचित करता है कि जिन लाइसेंसों के वितरण नीचे अनुसूची में दिए गए हैं , वे स्वीकृत कर दिए गए हैं:-

क्रम

स्वीकृत करने की लाइसेन्सधारी का नाम व पता लाइसेंस संख्याः तिथिःवर्ष माह

7:45893 29-05-2007 कोठारी इंडस्ट्रीज ( यूनिट 2) , प्लॉट नं. 12:3 , 124 और 125 , चंद्रमौली को-आपरेटिव इस्टेट लिमिटेड , मोहोल जिला- सोलापुर -413212 2 7747190 01-06-2007 धनलक्ष्मी री -रोलिंग मिल्स, दी-57 , एडीशनल, एमआईडीसी , जालना-431203

3. 7747089 01-06-2007 सुकनराज एस. परमार, 624 , गणेश पेठ, गोविंद हलवाई चौक , पुणे-411002, 4. 7737389 06 06-2007 किशोर अगुवा फूड्स , शैड नं. 81 / एन , लोनावाला इंडस्ट्रीयल इस्टेट, नांगरगांव , लौनावाला , तालुका-मावल, जिला- पुणे -410401 5

7748794 06-06-2007 चुनीलाल लभागी एंड संस, 546 , सेंटर स्ट्रीट, कौशल पैलेस कॅप , पुणे -411001 6

77-48903 01-06-2007 नाबाली इंडस्ट्रीज, गर संख्या 94 , सावनयाकी, कोरोची, तालुका- हॉटकंगले जिला-कोल्हापुर -416005 T. 7749501 07-06-2007 पायोनीर पॉलीमर्स, 139, चंद्रमौसी को आपरेटिव इंडस्ट्रीयत इस्टेट, मोहोल-किला- सोलापुर-413213

7753791 19-06-2007 रामचंद्र त्रिंबक देशमुख, 447 , चौपाटी कारंजा, अहमदनगार-414001,

अनुसूची

भारतीय मानक का

भाग अनुभाग वर्ष

भामा संख्या

7 8

14333

1996 सोवोज के लिए उत्त्य घनत्व के पॉलिथिलीन

176

1985 कांक्रीट री- इन्फोर्समेंट के लिए उच्च शक्ति कौ डीफार्षक स्टील की तारं न छड़ें

1999 स्वर्ण और स्वर्ण मिश्रधातु आभूषण/कृत्रिम शिल्पकृति और चिन्हांकन

14543

2004 पैकेजबंद पेयजल ( पैकेजबदि प्राकृतिक मिनरल जल के अलावा ।

] 4] 7

स्वर्ण और स्वर्ण मिश्रधातु आभूषण कृक्रिम- शिल्पकृति और चिन्हांकन

4985

2000 पेयजल आपूर्ति के लिए अनप्लास्टिसाइज्ड पीसीसी पाइप्स

1995

4984

पेयजल आपूर्ति के लिए उच्च घनत्व के पॉलिथिलीन पाइप्स

1417

1999 स्वर्ण और स्वर्ण मिश्रधातु आभूषण कृत्रिम- शिल्पकृति और चिन्हांकन

[ सं. मीएमडी ] 3:11 ]

ए. के. तलवार, उप महानिदेशक ( मुहर ) TUE GAZETTE OF INDIA : AUGUST 4. 1007/ SRAVANA 13 , 1929

New Delhi , the 23rd July.2007

5. 10. 2132- In pursuance of Sub- regulation ( 5 ) Regulation 4 of the Bureau of Indian Standards ( Certification) Regumons, 1985 , 01 the Rereau of Indian Standards . hereby notilies the psam of liccaces portablars of which are given in the lossing schedule :

SCHEDULE

15 No. Part Section Year

Title of the Standard

Gan Dale

51. No.

Licence No.

Name &Address of the Party

9 !

11335

29-5-2007

1996

High density 74dythylene pipes

Kutbari Industries ( Unit ( 1 ) Plot No. 123. 124 & 125. Chandramauli Co -op ad . Listate Lid . , Minni , Distria Sulapur--11.3212

1.36

جبال 1-6-300X17

Rolling Mil's .

7. Add MIX . 지그마

High : tregth deformed steel hare and wires fo

141-

Sukanraj S. Pamir .

Gold and gold alloys. Jewellery / artefacts . J'ineness and marking

624. Framesh Berli Govind Banswalsk Pune 411002

7737389

Kishor Aqua Louis. Shed No. 81AB .

Packageddrinkingwater Other thin parkayıl اديان mineral water

Lola Indusesal Fisarate . Nangargaon . 1.onavda . Tatuka- Mazal .

Dis -Pre-

1417

bilal aadhaji & Sons .

540. Cendre Sirect Kushai Palace.

Geld and sol Fineness and morking

יון Cial No.9

aplasticized PACPipes for Potable Water Sapph

Chawarwadı . Korische Taluka- alkane District -Kolhapur 416001

19.05 7-

Pioneer Polymer . 13. Спагетитauli Co- Op : troll state . Mohul.

High density polyethylene pipes for potable waeer supplies

141 :

Goldand gold all 1- inesess and inarking

Ramchand Trimbak Je-honkh . 47. Chowa Karas. Ahmednagar-11-1081

NCMNS:

A. K. FALWAR. DA. Director Cieneral Manks!

[भाग -खष्

4R21

भारत का राजपत्र अगस्त 4, 2007/ श्रावण 13 , 1929

नई दिल्ली, 23 जुलाई , 2007

का. आ. 2133.-- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम , 1988 के नियम ( 4 ) के उप - नियम ( 5 ) के अनुसरण में भारतीय मानक व्युग एतद अधिसूचित करता है कि जिन लाइसेन्सों के विवरण नीचे अनुसूची में दिए गए हैं, वं स्वीकृत कर दिये गए हैं :

अनुसूची

लाइसेंसधारी का नाम व फ्ता

चमतूतिथि

क्रम सं

लाइसेंस सं

जून2007

!. H

05-06-2007 मैसर्स श्री गम कंवल्स प्रा. लि. , ए 524. रीको सौद्यांगिक क्षेत्र , चौपांकी, भिवाडी -301 019 . जिला-अलवर ( राजस्थान ) :

मैस श्री प्रयाम कृपा इलैक्ट्रिक प्रा. लि. , एघ 11219 , फेज 3 . सीतापुरा औद्यागिक क्षेत्र , जयपुर राजस्थान।

12-04-2007 मैसर्स भिवाडी सिलिण्डर्स प्रा. लि., $-925. 1200 एवं 1201 , औ. क्षेत्र , भिवाड़ी- k$31689

11-06-2007 मेसर्स आदिनाथ पांवर कन्ट्रोल कंक्ल्स प्रा. लि. , एफ-67 ] . रोका औद्योगिक क्षेत्र, सीतापुरा , जयपुर ( राजस्थान)

11-06-2007

8831790

गैसर्स आदिनाथ पॉवर कण्ट्रोल कैवल्स प्र२. लि., एफ-671 . रीको औधोगिक क्षेत्र , सौतापुरा , वयपुर । राजस्थान ) 8832792

13 06 2007 पैसने नीमकाष्ठ वैस्ड प्रा. लि., बी-947 , रोको औद्योगिक क्षेत्र, फेज 3 , भिवाडी, जिला- अलवर ( राजस्थान ) ". 8827597

29-05-2007 पैलर्स ओम इन्टरनेशनल, एफ-31 , रौको औद्योगिक क्षेत्र. गंगल , अजमेर-305001 (राजस्थान )

५. 27496

29-05-2007 मैसर्स एडवान्स माइक्रो फर्टीलाईजर्स प्रा. लि. , ई -39 , रीको औद्योगिक क्षेत्र, बगरू ( विस्तार ) , बगरू, विला-नखुपर ( राजस्थान)

04-06-2007

9. 8828906

मैसर्ल श्री वर्धमान पॉवर आ. लि. , जी 849 , रोड नं. 14 , विश्वकर्मा औद्योगिक क्षेत्र, जयपुर-302013 ( राजस्थान) 6. 8831588

12-06-2007 मैसर्स मारूति पोलीमर्स, एफ.-४ एवं प्र , औद्योगिक क्षेत्र, मधानिया, जाधपुर-342 005 (राजस्थान) भारतीय मानक का शीर्षक व संबंधित भारतीय मान्क

694 ; 1990

पीवीसी इन्सुलेटेड कंबल्स

7098 ( भाग । ) : 1988 एक्सएलपीई इन्सुलेटेड पौबीसौ

3196 ( माग ) : 1992 सिलिण्डर्स फॉर रिश्वयफाय गैमंज अदर देन एसपीजो

7048 ( भाग 1 ) 1988 एक्साएलपीई इन्सुलेटेड पीवीसी कंवल्स 155-1 ( भाग ) : 1988 पीवीसी इन्सुलेटेड ( एबडी) केबल्स

447 : 1988 रबड़ होड फॉर वैल्डिंग

13543 : 200 बातलबन्द पीने का पानी

859660 : 1978

मिथाईल पैराथियान डीपी

7098 ( भाग 1 ) : 1988 एक्सएलपीई इन्सुलेटेड पीबीसी

4984 : 1995

एचडीपौरं पाइप्स 4802

PART IT-Stri THE GAZETTE OF INDIA : AUGUST 4. 2007/ SRAVANA 13.1929

-1

17-06-20

1.6830182

1554 भाग : : אא पणैर्वामी इन्सुलेटेड ( एचडी )

मैसर्स राजस्थान ट्रांसफार्मर्स एण्ड स्विगियर . (आरटीएस पॉलर काॉ. लि. की इकाई ) , सी-174. रोड नं. 9 ( ज) विश्वकर्मा औद्यागिक क्षेत्र , जयपुर 302013 ( राजस्थान)

07-06-2007

12. 8830384

7098 ( भाग 1 ) ; 1988 ५श्वरल्पोई इन्सुलेटेड पोवीसी कंवल्म

मैसर्स राजस्थान ट्रांसप्फार्ममं एण्ड स्त्रियगियर . (आरटीएम पॉवर कार्यों. ति. की इकाई ) , मी-174, रोड नं. ५६( जे ) , दिश्वकमां औद्योगिक क्षेत्र, जयपुर-302013 ( राजस्थान )

+ 8832388

11 06-2007

सनमसिवाल वाघ संर

मैसर्स खोवान्ल सबमांसंबल वेलार पम्प्स, 22, शमां कॉन्नंनी विस्तार . 22गोदाम, जयपुर ( राजस्थान)

11. 8829605

05-06-2007

498-1: 1995 एचडीपीई पड़प्र

प्रेसर्स राजस्थान इंजीनियर्स एण्ड कॉन्ट्रेक्टसं एण्टरपाईनेज, एफ-45 , औद्योगिक क्षेत्र, सीकर ( राजस्थान )

1-415 ।। भान 2 ) : 1999

US-06-2007

15. 8829501

## પૉલોપર્સ , एफ-107, शण्डार औध्योगिक क्षेत्र , जोधपुर 342 5004 ( राजस्थान )

8835188

14-06-2007

19 : 195

मैसर्स ब्लंड ( डॉग्णया ) , एफ ५१३ , रोड नं. 14 विश्वकर्मा औद्यागिक क्षेत्र. जयपुर -302 013 : गजम्थान)

803: 2002

14-06-2007

मत्रममिवल प्न एंट

मैसर्स प्रेम इण्डस्ट्रीज. 4-354, मंद्र 14 ज. विश्वकर्मा यांगिक क्षेत्र, नबपुर-302013 ( राजस्थान )

14 6 200

છ-સિદ્રિઃિ

વિચિત્ર છે. M एब 1 374, सीतापुर । लगिक क्षेत्र, जयपुर ( राजस्थान)

15-06-2107

60 : 1990

15. 8834100

पोवंशी इन्सुलेटेड कंबल्स

मैसर्स विजय कंवल्स एच 373 , सीतापुर। औद्योगिक क्षेत्र, जयपुर (राजस्थान )

19-06-2007

210 8834594

1417 : 1999 स्त्रांभूषणों की हालाकिंग

मैसर्स सुनील ज्वैलर्स, 10 , गंगा माता की गला, गांपाल जी क ग़म्ता, जयपुर 3112101 ( राजस्थान )

21. 8834605

29-06-2007

13487 : 1992 इंगगन इन्विम्पेंट उपीटर

मंसर्स आराम सस्टिन्स प्रा. लि जी-132, टैंक रोड , मीत पुरा अव्धांगिन क्षेत्र, जयपुर-302 037 ( राजस्थान )

23-06-2007

22. 883570 )

9958 ( भार 21 : 2002 इसाल्टा- इन्सुलेटेड कंबरस

मैसर्स नांगलवाला देक्स ( प्रा. ) लि.. एफ -152 एम.आई.उ.. अलन्डर 30 : 030 ( गजस्थान ) भारत का राजपत्र [ भाग खाण्ड ( ii) ]

21-06-2007

23. 6835802

मैसर्स पाईन लैमोनेट्स प्राप् स्प्ि प-526 ए, रीकों औद्योगिक क्षेत्र , चौपांकी, भिवाडी, जिला अलवर (दराजस्थान ) 24. 8836093

21-06-2007 मैसर्स नवरतन पाईप एब्ड प्रोफाईल लि. एसपी-6 , रीको औद्योगिक क्षेत्र, खुशखेडा, जिला अलवर (राजस्थान)

08-06-2007

25. R830788

मैसर्स बैंकटेश इझीगेशन सिस्टमस प्रा. लि. , जी- 1-28 , एचएमटी रीको औद्योगिक क्षेत्र , ब्यावर रोड, अजमेर- 305001 (राजस्थान) 24 RR26902

29-05-2007 मैसर्स केशव इलैक्ट्रिकल्स (प्रा. ) लि.. जी 1-63 , रौको औद्योगिक क्षेत्र. कालाडेरा , जयपुर ( राजस्थान)

20073005קל

27. 66268

मैसर्स जे. के. व्हाइट सीमेंट क्वर्क्स पो. ऑ. गोटन-342 902 जिला नागौर ( राजस्थान )

28. 8827193

29-05-2007 मैसर्म सारूण्डा लैम्प्स प्रा. लि., बीकानेर रोड, बीकासर , नोखा जिला- बीकानेर ( राजस्थान)

29. 8827092

30-05-2007 पैसर्स जे. के. सीमेंट क्चर्स , पां. ऑ. गांटन-342 902 जिला नागौर ( राजस्थान )

4827

अगस्त 4, 2007/श्रवणे 13, 1929

4990 : 1993

कांक्रीट शटरिंग प्लाईवुद्ध

4270 : 2001

स्टील ट्यूय्स फॉर स्ट्रक्चरल परपज

13487 : 1992 इरीगेशन इक्विपमेंट- एमोटर

14255 :1995

8112 : 1989 43 ग्रेड ओपीसौ

418 : 2004

नौएलएस लैम्प्स

1489( भाग 1 ) : 1991 पोर्टलैण्ड पोबोलाना सौपेष्ट

[सं. सीएमडी 13 : 111

ए. के. तलवार, उप महानिदेशक ( मुहर )

NewDelhi , the 23rd July,2007

S.O. 2133. In pursuance of sub- regulation (5 ) of regulation 4 of the Bureau of Indian Standards (Certification) Regulation, 1988, the Bureau of Indian Standards , hereby notifies the grant of licence particulars of which are given in the following Schedules:-

SCHEDAILE

Sl .No.

OperativeDate

LicenceNo. (CML-)

June2007

05-06-2007

883000.1

3218 GW07-2

Name and address of the Licensee Article Process covered

by the licences and the relevant IS: Designation

-4

694:1990

PVC Insulated Cables

Mis. Sri Ram Cables Pvt. Ltd A-524, RICO Industrial Area Chopanki ,Bhiwadi Distt. Alwar- 301019 Rajasthan 4824

THE GAZETTE OF INDIA: AUGUST 4. 2007/ SKAVANA 13, 1929

FAKI 11 SUC. Міін 2

5 2 8831487

12-6-2007

( (Put 1988 XLPF Insulated PVC Cables

Mix Saree Shyam Ктіра Electric: Satapura Industrial Area , Jaipur Rajasılı ลา!

12-6 2007

8831992

3156 Part 2) : 19 Cylinders for liquefiable Gases other than LPG

Mis . Bhiwad: Cylinders Pr: Ltd. E-925. 1200& 120 ] lodustial Area Bhiwadi - 301019 Distt . Alwar Rajasthur

ㅏ 8831689

11-6-2007

7098 Рал 11 : 1988 XI.JPF Insulated PVC Cables

M/s. Adinath Power Control Cables (P) Ltd .. F- 671 , RICO Induspist Arca Sirapura, Jaipur ( Rajasilatı>

11-6-3007

8851740

1334m 1 : 1988 PVV Insulated (HD) Cables

M/s. Adinara Power Control Cables ( P) Lid ., 1-671 . RICO Industrial Area Sitapura . Jaipur (Rajasthan)

8832792

13-6-2007

+17:1988 Rubber Huse for welding

Mi's. Neelkanth Weld F41 . Lid . 13-447 , KJIK Phase - 111, Bhiwad: Thisn .Alwar. Rajasthan Area

8827597

20-5-2007

Puckaged Drinking Water

Mis. Om lavernacional F31, ROCO Tindustrial Aura Gegal . Ajmer- 305001 Rajasthan

8827496

29-5-2007

Merhyl Pararsion 2 DP

M's . Advance Micro Feralizers Pr . Ind.. F- 39. RICO Industrial Area Bagra [ Extension .Bagru Distr . Laipus. Kajasttrarı

1878906

6-2007

11 : 1986 XPEmulated PVC Cables

Ms. Shree Vanligi Bower I.rd... G 849. Road No. 4 V.K.1. Area. Jaipur-302013 Rajasthan

12-6-2007

4064:1995 HOPEPapes

M's. Maruti Folymers F-8 & 9 . Industrial Area Mathadia . Jodhpur-342005 Rajasthan

8:0182

1-6-2007

155 : 198 PVC husalared ( HT) ! Cables

M/ s. Rajesthan Transformers Switchgear )A unit of RTS Power Corper סטנג Lod.i.C- 174 . Road No. 9(UV.K.I . Area. Jaipur-302013 Rojasthar.

4825

भारत का राजपत्र अगस्त 4, 2007 / श्रावण 13, 1929

[ भाग-खण्ड (ii) ]

3 2

7-6-2007 12 8830984

11-6-2007 13.

5-6-2007 F829605

14.

5-6-2007 เจ๊. 1829504

14-6-2007 ! . 883.3188

14-6-2017 8833087

18-6-2007 8824069

118-6-2007 3834190

19-6-2007 8834954

19-6-2007 3834695

11.

21-6-2007 8835TUE

7098 (Part1): 1988 XIPE Insulated PVC Cubles

M/s, Rajasthan Transformers & Switchgear (A Um ofRT'S Power Corporation Ltd., C-174, Road No. 9(I ) V.K.1. Area, Jaipur-302013 Rajasthan.

8034:2002 Submersible Pumpsers Mis. Khowal Submersible Valour Pumps, 22, Sharma Colony Ext .. 22, Godam , Jaipur, (Rajasthan ) .

4984: 1905 JIDPE Pipes

Mis. Rajasthan Engineers & Contractors Enterprises, J -45, Industrial Area Sikar(Rajasthan ).

14151 (Part 2)x1999 QCPE Pipes

Mís.Raj Laxmi Polynes F- 107 . Mandor Industrial Arca, Jodhpur-342304( Rajasthan).

1984: 145 HOPEPipes

Mis .Blade (India) F-943. Road No. 14, V.K.I. Arca Jaipur -312013, Rajasthan.

8034:20 (2 Suhmersible Pumpsets Mus . Prem Industries E-354, Road No. 14-J. V.K.LArea , Jaipur-302013. Rajasthan.

694-1990 PVC Insulated Cables M/ s. G.C. Cables НІ -374. Silaригa Industrial Area . Jaipur .Rajasthan.

694: 1900

PVC hisulated Cables Mrs. Vijay Cables H-373, Sitapura Industrial Area . Jaipur,Rajasthan .

1417:1999 Hallmarking ofGold Jewellery

M/ s .Sunil Jewellers 10, Oanga Mata Ki Gali , Gopal ji ka Rasta, Jaipur-302003 Rajasthan.

13484:1992 Irrigation Equipment Limituers

M/s . Aaram Plastics Private Limited G-232, Tonk Road, Sitapura , Industrial Arca . Juipur-302022 Rajusthan.

9968(Part 2): 2002 Elastomer Insulated Cables M/ s.Nangalwala limpex (P) Ltd. , 1152, M.LA. Alwar-301000 Rujasthan.

4826

PART I- Sec . 3 ( ii ) THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13. 1929

5 13. 8335802

49901997 Concrete Shumering Plywood

Mis Pine Laminates Pvt. Lid .. A-526.A, ROCO Industrial Area . Chopanki , Bhiwadi , Distr. Alwar, Rajasthan .

24.

21-6-2007

M/ s .Navratan Pipe & Protile Limited SP- 6 , RICO Industrial Area Khushkhera Alwar, Rajasthan .

4270: 3001 Steel Tubes for Structural Purposes

30766

8-6-2007

13187.1992 Irrigation Equipment Lroilers

Mis. Vanktesh Irrigation Systems Pvt. Ltd.. G- 1-28 . HMT RINCO Indl . Area Beawar Road. Ajmer -305000L Rajasthan.

806902

26 .

295-2007

14255: 1995 Acrial Bunched Cables

M/ s . Kehsav Electricals ( P ) Ltd., GI-63 , RIICO Industrial Area . Kaladera , Jaipur. Rajasthan .

27.

30-5-2007

Si 12: 1989

45 GirideOPC

Mrs. J.K. White Cement Works P.O. Gotan-342902 Distt . Nagaur . Rajasthan.

23 8807193

29-5-20UT

4 : 82004

GLSlamps

M/s. Sarunda Lamps Private Limited , Bikaner Road, Bikasur, NokhaDistt . Bikanea , Kujasthan

827092

30-5-2007

1489 (Part 1 ) :1991 Portland Pozzolana Cement

Ms. JK. Cement Works PO. Golan, Dult . Nagaur-342902 Rajasthan.

[No. CMT / 13.111

A.K. TALWAR. Dy . Director Gineral (Marks )

नई दिल्ली, 22 जुलाई, 2007

का.आ. 2134- भारतीय मानक ब्यूरो नियम, 1987 के नियम के उनियम ( 1 ) के खंड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्द्वारः अधिसूचित करता है कि नीचे अनुसूची में दिए गए पारक ( को ) में संशोधन किया गयाः किंयं गये हैं:-

अनुसूची

क्रम संख्या

संशोधन की संख्या और

मंशोधित भारतीय मानक( कों) की संख्या वर्ष और प्रर्षिक

संशोधन लागू होने की तिथि

4 आईएस 10918 : 1984 को संशोधन संख्यः ।

। जुलाई, 2007

31 जुलाई , 2007 इस भारतोय संशोधन को प्रतियाँ भारतीय मानक ब्यूरो , मानक भवन , 9 बहादूर शह जफर मार्ग . नई दिल्लो क्षेत्रीय कार्यालयों नई दिल्ली, कोलकाता , घण्डीगढ़, चेन्नई , मुम्बई तथा शाखा कार्यालयों अहम्रदावाद , बंगलौर , भोपाल, अन्ननेश्वर, झायेम्बतूर , गुवाहाटी, हैदराबाद, जयपुर, कानपुर, पटना , पूगे तथा तिरुषन्नन्तापुरम में बिक्री हेतु उपलब्ध हैं ।

[संदर्भ: इरी !! ये -15

१. के. पुखर्जी , वैर्लन्क एफ एवं प्रमुख ( विद्युत तकनीकी ) 4827

भारत का राजपत्र अगस्त 4, 2007 / श्रावण 13, 1929

[भाग खण्ड ( ii ) ]

NewDelbi , tbe 24th July,2007

5. 0. 2134,-In pursuance of clanse ( b ) of sub- rule ( 1 ) ofRule 7 of the Bureau of Indian Standards Rules, 1997,the Bureau of Indian Standards bereby notifies that amendment to the Indian Standards , particulars ofwhich are given in the Schedule hereto annexed has been issued :

SCHEDULE

Sl .No.

No. and Year of the Amendment

No. and Year ofthe lodien. Standards

Date from which the Amendment shall have effect

(4)

(3)

(2)

1 .

1,July2007

31st July, 2007 IS 10918 : 1984 ,Specification for verted type nickel cadmium batteries

Copy ofthisAmendment is available with the Bureau of Indian Standards, Manak Bhavan , 9, Bahadur Shah Zadar Marg, New Delhi - 1100002 and Regional Offices : New Delhi , Kolkuta, Chandigarh , Chennai , Mumbai and also Branch Offices : Ahmedabad , Bangalore, Bhopal , Bhubaneshwar , Coimbatore, Guwahatı , Hyderabad, Jaipur , Kanpur, Nagpur , Patna Pune, Thiruvananthapuram.

[Ref.: ET 11 / 1-35]

P. K. MUKHERJEE, Sc. F & Head (Electrotechnical)

नई दिल्ली , 27 जुलाई, 2007

का.आ. 2135.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम , 1988 के विनियम 4 के उप - विनियम ( 5 ) के अनुसरण में भारतीय मानक ब्यूराः एतद्‌द्वारा अधिसूचित करता है कि जिनके विवराण चीचे अनुसूची में दिये गये हैं को लाइसेंस प्रदान किए गए हैं :-

अनुसूची

उत्पाद

आई एस वैद्यता तिथि पार्टी का नाम एवं पता ( कारखाना )

क्रम लाइसेंम

सं. भाग खण्ड संसंख्या

! 2

पीवीसी रोभिन

1554 : भाग : 1988 5-6-2008

: 2749194

जे एन इंडस्ट्रीज ,

(चैवीडयूटी) विद्युत

केबल भांग । 1100 पोस्ट तक

कार्यकारी वोल्टता के लिए

16 /डी अनवर इंडस्ट्रियल वेलफेअर असोसिएशन , मुकादम कंपाउंड के पास, फिल्म सिटी रोड , गोकुलधाम, मालाड ( पूर्व ) ,

मुंबई-400097

पोवोसी रोधिन्त 1554 : भाग-1 : 1988 4-6-200개

27750280

विकास कंवत्स ,

(हैपीडयूटी) विद्युत

केबल भाग 1

1100 वोल्ट तक

सर्वे सं. 112/ 2 ए , एस्सार पेट्रोल पंप के पौले , कल्याण मुरबाड रोड , कांरगाव, कल्याण,

कार्यकारी वोल्टता के लिए

जिला धाने-421301

1554 : भाग 1 : 1988

पीवीसी रोधित

21-6-2008

3 77.53993

टेक्नोफ्लेक्स केबल्स,

(हैवीड्यूटी) विद्युत

केवल भाग 1

LLDO वोल्ट तक

कार्यकारी वोल्टता के लिए

इं/ 1 , शिंगटे कंपाउंड, कोकनीपाहा, दहिसर (पूर्व) , मुबई 400068 4828

THE GAZETTE OF INDIA : AUGUST 4.20K17 / SRAVANA , 13. 1929

PART --S ] 2

4 7750078

14697 : 1999 10-6-2008

लोटस वायर्स और केबल्स . 41/3 , सिल्वर इंडस्ट्रियल इस्टंट के पीछे , पातलिया रोड , भिमष्णंर, प्लॉट सं. 1. नानी दमण , दमण और दौष 396 210

ए. लो स्थैनिक ट्रोसफायंर चालित वार घंटे एवं ए. आर घंट मोटर , वर्ग 0.2 एम तथा 0.5 एस

5 7754288

271: 1999 25-6-20

सिलिंग रोडज

कल्कीइंडस्ट्रिज, कल्की इस्टेट , ईश्वाभाई पटेल रोड , गोरेगरेव ( पश्चिम ) , मुंबई 100063

27-6-2008

6 7756090

1293: 1988

250 बोल्ट तक की रंटिंत यांस्टना वाले और 16 एम्प्गेयर तक को रेटित करंट वाले प्लग और साऊंट निकास

एस आर इडस्ट्रीज संख्या 54 , दुसरु पाला. आदित्य इंडस्ट्रियल इस्टेट, चिंचोली बंदर रोड , मालाड ( पश्चिम) . मुंबई 400 064

7 7749497

6-6-2008

5.54 भागे 1988

नविन इंडस्टोज, बैरक सं. 1965 के पौछ, ओ. टी सेक्शन , उल्हासनगर, धाने 421 005

पानीथी राधित (तैवीडयूटी) विद्युत कंबन्न भाग । 1100 पॉल्ट तक कार्यकारी बांटत्प के लिए

8 7755997

276-200개

8783 : भाग -4 : अनुभाग-3 : 1995

एपल इन्सुलेटेड व्दाबर प्राइवेट लिमिटेड, सर्वे सं 219/2/3 . दादरा चेक भौस्ट के पास, दादरा नगर हवेली . दादरा 396 230

निमज्जन माटरों क वाइडिंग तार भाग 4 अलग-अलग तारों की विशिष्टि अनुभाग છ પત્ય િ पालिप्रालोलीन मंधित वाइडिंग नार

9775031

4-6-2008

7098 : भाग :

विकास केबल्स. सर्वे सं. 112: 2 , एस्सार पैट्रोल पंप के पीछे , कल्याण मुरबाड रोड, कांबगाव, कल्याण , जिला थाने -421 301

अनुप्रस्थ जुड़े हुए पॉलीइथालीन निद्युतरोधी 1988 पी वी सौः आवरित केबल ( भाग 1 ) : 100 बोल्ट और सहित की कार्यकारी वोल्टता कं लिए

10 7749295

42.50 : 1980 56-2008

बिजली के घरेलू खाद्य मिक्सस (इवीपरक और ग्राइंडर )

राहूल होम अप्लाएंसेस्. फगवाला कंपाऊंड . महाराष्ट्र नगर , भांडुप ( पश्चिम) , मुंबई 400 078

सं. कंन्द्रीय प्रमाणन विभाग::::

र. के. जलन्ार , उप महानिदेशक ( प्रमाणन ) भारत का राजापत्र : अगस्त 4, 2007/ श्रावण 13 , 1929

[ भाग खण्ड ( ii) ]

4829

NewDelhi , the 27th July,2007

5.0.2135 . In pursuance of sub - regulation ( 5 ) of regulation 4 of the Bureau of Indian Standards (Certification ) Regulations . 1988 , the Bureau of Indian Standards, hereby notifies the grant of licences particulars of which are given below in the following schertule:

SCHEDULE

Sl . No.

Product

No Part/Sex Year

Name and Address ( factory ) of the

Party

Validity Date

Licence No.

05-6-2008

7749194

J.N. Industries 16/D,Anwar INDL . Welfare Association, NR. Mukadam Comp, Film CityRoad, Gokuldham , Malad (JE), Mumbai-400097

(4-6-2008

? 77500:80

VikasCables Survey No. 112/2,Behind Essar Petrol Pump. Kalyan MurbedRoad, Karobagaon , Kalyan Dist. Thane-421301

21-6-2008

7753993

Technoflax Cables F/ 1 , ShinghteCompound. Koknipada Dabisar (F). Mumbai -400068 4 7750078 10-6-2008 Lotus Wires & Cables 11/3 . Behind Silver ladi , Estate, Patulia Road, Phimpore, Plot No. 1 , Nani Damao Daman & Diu-396210

7754288

256-2008

1554: Part 1 :1988 PVC: insulated (heavy duty) electric cables : Part | for working voltages upto and including 1100V

1554: Part 1 :1988 PVC insulated (heavy duty) electric cables: Par ! for working voltages upto and including

1554: Part ] :1988 PVC insulated (beavy duty) electric cables: Part I for working voltages upto and including 1100V

14697: 1999 ACStatic Transforma Operated Wanhour and Var-hour Meters , Class 0.25 and 0.5 S

371:1999 Ceiling Roses

Kalki Industries

KalkiEstate,

Ishwarbhai Patel Rd,

Goregaon (W).

Mumbai-400063

27-6-2008

1756090

SR. Industries No.54. Second Floor, Aditya Ind ! Estate. ChincholBunder Road Malad (W), Mumbai -400064

06-6-2006

7749497

Navio Industries BehindBk. No. 1965, O. T. Section , (Thasnagar Thane-421005

1293: 1988 Plugs and socket outlets of250 volts and rated current up to 16 amperes

1554:Part 1 :1968 PVCinsu ated (heavy duty) electric cables: Pan 1 for working voltages upto and including LOUV 420

THE GAZETTE OF INDIA : AUGUST 4, 2007/ SRAVANA 13.1429

7755997 27-6-2008

Apple Insulated Wire Pvt . Ltd. Survey No. 219/2/3 , NR Dadra Check Post, Dadra and NagarHaveti. Dodar -39622.30

7750381 46-2008

Vikas Cabies Survey No. 112/2, behind Lissar Petrol Pump. Kalyan-Murbad Road, Kambagaun Kalyan Thane-121001

$ 6 2006

Rahul HomeAppliances Fuggarwala Couпрошты. Maharashtra Nagar . Bharkup ( WI , Mumbai 400075

PART II-SEC. 3 (si ) ]

8783: Part

4: Sec 3: 1995 Winding Wires for Submersible Моють Specification- Part 4: Specification fur Individual Wirs Section 3: Polyester una polypropylene Insulinted Winding Wires

Crosslinkad

70981. Рэп

1:1988 Polyethylene insulated PVC sheathed cables : Part I for working volraps: upto and inclemling 1100%

+250.1980 Domest: Filectro 1ood -Mixers (Liquidizes aux Giri - ulers )

N. CMIDY13 : 1 ] | A K. TALWAR. Dy Director General (Marksı

नई दिल्लो, 11) जुलाई , 2007

का आ, 2136.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम, 1988 के विनियम के उप- विनियम १ ) कं अनुमरण में भारत पानक न्यूरो एतद्वारा मांचं अनुसूची में दिये गये उत्पादों को पुहरांकन शुल्क अधिसूचित करता है:-

अनुसूची

इकाई

मुष्कर

उरुक 1 :

पैनाने

पैपचं

पर 0 1980

17500 10500

सरक और लेरिया के न कां स्खलियाँ

TF:

34200 15400

ऊशिक पलाई रहित दूध एम टी.

पाउंडर

15:00

C 0 2002

100 लिटर 43400

प्रेटीलाकोर पायसनीय प्सांद्र

36900

23351

0 2003 नहर के अस्तर के लिए

55600 453000

100 वर्ग मीटर

(एवडीपीई ) का कपड़

इन्काईले क

प्रानन

दर

यांदा

सलव

300

16.00 2000

13000 300

35.00

65.00 300

13 06 200 2000

22.00

1:00 19 36 2007 500 सभी

19:16 200-

[सं. कंप्रविः 13:11) ५६. शं. तनवार , उप महानिदेशक । मुहर;

4831 [ भाग- खण्ड ( ii) ]

भारत का राजपत्र अगस्त 4, 2007/ ऋवण 13 , 1929

NewDelhi, the 30th July, 2007

5.Ο. 2136.-In pursuance of sub- regulation (3 ) of regulation of ofthe Bureau of Indian Standards ( Certification) Regulations, 1988 , the Bureau of Indian Standards , hereby notifies die marking fee for the products given in the Schodule :

SCHEDULE

Part Sec Year

Product

Units

Units Rate

Units Re- in

15 No

Effective Due

maiming

Large Salk

Making For Small Scale

Units Rate 5-2 Slab- 2

Voits io Slah- 1

1937 0 0

30500 16.00

2000 4.00 19-06-2007

2000 8.00

37500

1986 Mustard & Rape Seed ( Tome Oil Calc

14542 0 ជា

33400

65.00 3:00 33.00 19-06-2007

130.00 300

1998 Panly Sklokmcó Midk LM.I. 39200 Powder

15164 0 [디 2002 Predikchor Emulaliabic 100 43400 36900 22.00 2000 0 D 11.00 19-06-2007 1535.0 0

19-06-2007 2003

55600 47300

All

100 54.

mits .

Laminased High Density Polyedrylene (HEPE) Fabric for Canal Lining

(No.CMD/ 13 : 10 ]

A.K. TALWAR, Dy.Director General (Marks)

नई दिल्ली , 30 जुलाई, 2007

का.आ., 21.37.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम , 1988 के विनियम ( 5 ) के उप- विनियम ( 6 ) के अनुसरण में भारतीय मानक ब्यूरो एस‌द्वारा अधिसूचित करता है कि निम्न विवरण वाले लाइसेंसों को उनके आगे दर्शायी गई तारीख से रद्द स्थगित कर दिया गया है :-

रद्द/स्थगित करने लाईसेंसध्वरी का नाम व पता

क्रम संख्या

लाइसेंस संख्या सीएमएल-

साइसेंस के अंतर्गत वस्तु/प्रक्रम सम्बद्ध पारतीय मानक का शीर्षक

5 L. सीएम/ एल-7471276

200-7005401

पैकेज बन्द पेय जल ( पैकेज बन्द प्राकृक्तिक मिनरल बल के अलावा) - विशिष्टि भामा 14543: 2004

जय कोडियार इंडस्ट्रीज , हरिओम सोसायटी , कोठारिया रिंग रोड,

राजकोट, गुजरात 360004

2007/06/22 सीएम/ एल-7591286

43 ब्रेड साधारण पोर्टलैंड सीमेंट भामा 8 ] 12 ; 1989

ए वन सीमेंट इंडस्ट्रीज , 8-अ राष्ट्रीय राजमार्ग , अमूल दाल मिल के सामने , विमबड़ी, मोरवी , जिला राजकोट, गुजरात 363642

3. सीएम/ एल -0767868

2007/06/13 एक्सेल क्रॉप सेबर लि 6/2रूवापरी रोड , भावनगर,

तकनीकी ग्रेड एन्डोसल्फान की विशिष्टि भाम्मा 4344 : 1978

गुजरान

सीएम/ एल -2224436

2007/05/03

टाइपराइटर के सूत्री रिबन की विशिष्टि भामा 4174 : 1977

सोलर पैकेजिंग प्रा . लि., श्री अमरसिंहजी मिल्ब कंठऊंड , स्टेशन रोड, बांकानेर, जिला राजकोट, गुजेरात 3636.22

5 सीएम/एल-7245166

2007.05 /30

पेय जल आपूर्ति, मल और औद्योगिक महिस्त्रायों हेतु उच्च घनत्व पॉलीड्‌याइलीन पाइप भाभी 4984 : 1995

अमर ज्योत पोली केम प्रा. लि. , प्लॉट सं. 2222 , सोधिक जी आई डी सी , राधे वे ब्रिज, पेटीहा , तालुका: लोधिका, बिला राजकोट , गुजयत 36-44,58

3216 G07-3 4832

PART 1 Suc: 3 (10)]

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13,1929

3 सीएम एल-7315868 छयाति पोलीमरज , 1/4 , सम्राट इंडस्ट्रीयल हरिया, मैन सैब के समीप , कॉ विक्रम सम्यभाई मार्ग , मॉडल रोड़ , रात्रकोट गुबरात 360004 सीएम/ एल-7318268 अशोक होम एप्लांयसिज प्रा. लि. , अशोक उद्योग भवन -11 , सांठी रोड , मावड़ी प्लोट, राजकोट, मुजफत 360004 & सीएमएल-7374278

कृष्णा प्लाष्टिकज , गोंडल रोड़, मनसत्ता इंडस्ट्रीब , जमनाथ मार्बलम , राजकोट , गुजरात360004 9. सीएम एल-7414062 प्रमुखा सीमेंट प्रा. लि. , सर्वे सं. 83/1 , गौण अस्थैर्य, खालुका कोटडा संघानी, राज्यकलेट, गुजरात 10 सीएम/एल-7479902

मुंद्र, कच्छ 370415 जिद्दल सॉ दिल , गाँव नानकपाया , तालुका

11- सीएम एल-7467285 परफेक्ट बेवरेजीज, 14, विश्रामनगर , चित्रा सिदार रोड पानी की टंकी के सामने , भावनगर, गुजरात 364001

2007/05/30 सिंचाई उपस्कर स्प्रिंकलर पाईप- विशिष्टि भाग 1 पोलीश्रीलीन माईप भामा 14151 : भाग 1999

2007/ 06-20 द्रवित पैट्रोलियम गैसों के साथ प्रयुक्त मरेलू गैस चूल्हे भामा 4246 : 2002

2007/06/18 सिंचाई उपस्कर स्प्रिंकलर पाईप- विशिष्ट भाग पोलीश्रीलीन पाईप

भामा 14131 : মাল : 1999

2007053 ] 43 ग्रेड साधारण पोर्टलैंड सीमेंट भामा 8112 : 1999

20017/06/04 कुंडलित वेल्डित पाइपें पामा 5504 : 1997

2007/06/27 पैकेजबन्द पेय जल ( पैकेजबन्द प्राकृतिक मिनरल बल के आलावा) विशिष्टि मामा 14543: 2004

[ संख्या सी एम डी -13 : 13 ]

ए, के. तलवार, उप महानिदेशक ( पुहर )

New Delhi, the 30th July,2007

SO. 2137.In pursunez of sub- regulatina ( 5) of the regulation 5 of the Bureau of Indian Standards ( Certification ) Regulations. 1988, of the Bureaar of Indian Standards, hereby notifles that the liceraces particulars of which are given belo have cancelled'suspended with effect from the date indicated against each:

Lidence No.

Name &Address of the License

SL No. CNL-

1. CMUL-7471276 M/ sJayKbodiyar Industrics Hariom Society, Kothariya Ring RoadRajkot-360004, Gujarat360004

2 CM/L-7591286 M/s A-One Cemem Industries 8 -A, National Highway Орр . Атив) PulseMill, Timbadi, Morbi , Disti:Rajkot Gujarat 363642 CN/L-0767868 M/s Excel Crop Care Lid, 6/2 Ruvapari Road, Bhavnagar , Gujaral364005 4, CM/L-2224436 M/sSolar Packunging Pvt . Ltd. Sbri Amarsinhji Mills Compound, Stailon Road, Wankarner , Distt:Rajkot,Gujarat-363622 Article/Process with Relevant Indian Standards Coveredby the Licence

Date ofCancellation: the Licence Cancelled/ Suspension

IS14543: 2004

2007105,01

2007/06/22 188112: 1989

2007/06/13

IS4344: 1978

2007/05/08

IS4174:1977 4833 [भाग -खण्ड ( i) ]

भारत का राजपत्र अगस्त 4, 2007/ 철이 13 , 1929

3 .

5. CML-7245166

2007/05/30

154984: 1995

M/s . Amar Jyot Poly Chem . PVL Lad Plot No. 2222, Lodia GIDC, Opp.Radhe Wey Bridge at Metoda Thl .Lodhika, Dist: Rajkot, Gujarat-364458

6. CM/L-7315868

2007/05/30

CS 14151 : Part 1 : 1999

Mis .Khyati Polymers 1/4, Samrat Industrial Area, Nour Lab, Dr. Vingro Sambhai Marg.Gondal Road. Rajkot,Gujrat-360004

5. CML-7318268

2007/06/20

IS 4246 : 2002

M/s. AshokHome Appliances Pvt. Ltd. Ashok Udyog Bhavan , Tunti Road, Mavdi Plor, Rajkot, Gujarat-360004

& CM/ L-7374278

IS 14151 : P11 : 1999

2007/06/30 Mis .Kristma Plastics Gondal Road Behind Mansatta Industries , Opp. Iagnath Marbles, Rajlont, Gojarat-360004

9. CML-7414062

8 : 12 : 1989

2007/05/31 Mis. Prasach Cement Pvt . Ltd. SurveyNo.83/1 , VillageArdoi, Taluka Kotdneangani, Rajkot,Gujarat

10. CM/L-7479902

S5504: 1997

2007/06/04 M/s . Jindat Saw LAL Villags: Nankaptya, Taluka Mundra, Lisa.: Kachchh, Guja -370415

11. CML-7467285

IS14543:2004

2007/04/27 M/ s. PerfectBeverages, 14. Vishramnagar, Chitra-Sidrar Road, Opp. Wister Tank, Bhavnagar, Gajax-364001

[No.CMD13:131

A. K. TALWAR Dys Director General (Maria)

नई दिल्ली, 30 जुलाई, 2007

का. आ. 2138,- भारतीय सनक स्कू ( प्रमाणन ) विनियम , 1988 के विनियम 5 को नि ) के अनुसरण में फाशीम अवक ब्यूरो एकद्वारा अधिसूचित करता है कि जिनके विवरण मीचे अनुसूची में दिएको गयाः

लाइसेंस संघमा

आतिसधारी उन नाम एवं पता

लक्सेंस के

क्रम संख्या

7330662

27-6-2007 परदेस (पू ),

2148:1901 विस्फोटी गैस किरणों के बिजली के उपकरण ज्नात्तामा 4534

THE GAZETTE OF INDIA :ALGUST 4, 2007 / SRAVANA 13 , 1999

그

]

2 7026659

डीःके इलेक्ट्रीकल्स

गाला सं. 1. पहत्ना मग्ला, मनीष इंडस्ट्रीयल इस्टेट सं. 1. नवभर . वसई रोड ( पूर्व )

बिला बाने -401210 3.

7: 29-

कॉमेंट इंडस्ट्रीज,

शर्मा इंडस्ट्रीयल इस्टेट, गाला मं. 3 , उ‌द्योग भवन , बश्लभट रोड, गोरेगाँव ( पूर्व) , मुंबई -400 063 1

3854: 1997

25-06-2007 बरेलूऔर अमान प्रयोजनों के लिए स्वित्च

2148 : 1981

विस्फोटी गैस पर्यावरणो के लिए विरुजी के उपकरण...ज्वालासह आवरण

[ सं. कंन्द्रोग प्रमाणन विभागः13 : 131 ए. के. तलवार, २ पमहानिदेशक ( म्हर )

New Delhi , the 30th July . 2007

1.0. 2138- In pursuance of sub- regulation ( 6 ) of Regulation 5 vi the Bureau of Indian Standards (Certification Regulations , 1988 , the Bureau of Ladisa Standards . bereby notifies that the licences particulars of which are given in the following schedule have been cancelled with effect from the date indicated against each:

SCHEDULE

Sl . LirenceNo.

No.

Name and Address of the Licensee

1 . 7.380662

Comet Brass Product Nuran Chemical Compound, Walbhat Road, Goregaon (E) . Mumbai-400063

2 7026654

D.K.Elearicals

GalaNo. 1. Fire Floor, Manish Indl . Estate No. 1. Navghar, Vasai Roard ( East ) Distt. These-401210 3. 7462881

Comet ladustries

Sharrua Industrial Estate , Czais No. 3, Udhyog Bhavan, Walbhat Road ,Goregaon (F) , Mumbai-400063

Dale of Cancellation Article/ Process with zelevant triglian Standants coveredby the licence cancelled

17062007

2148:1981

Flameproof enclosures for electrical apразвіц

25-06-2007

3854: 1997

Switches for domestic purposes

27-06-2007

254천: 9

Flamepicor enclosures for electrical apparatus

[No. CMD/ 13: 131 A.K.TALWAR. D. Director General (Marks.

4835

भारत का राजपत्र अगस्त 4, 2007 / यण 13, 1929

भाग II-खष्य 3( ii) ]

श्रम एवं रोज़गार मंत्रालय नई दिल्ली, 9 जुत्ताई, 2007

the Section 10 of the Industrial Disputes Act, 1947 has referred this dispute vide Order Na. L- 12012/258/2002- LR(B-1) dated 5th February, 2003 for adjudication on the following schedule :

SCHEDULE

"Whether the action of the management of Tungabhadra Gramin Bank imposing the penalty ofpunishment of removal from services on Shirl B.Mahadevappa is legal and justilled? If not,what relief the workman is entitled? "

का. भा. 2139,-औद्योगिक विवाद अधिनियम , 1947 (1947 का ( 4 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार तुंगभद्रा ग्रामीण बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , बैंगलौर के पंचाट ( संदर्भ संख्या 5/2003 ) को प्रकाशित करती है , जो केन्द्रीय सरकार कौ 09-07-2007 को प्राप्त हुआ था ।

[सं एल-12012/258/2002- आईआर( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi , the 9th July,2007

2.A charge sheet dated 17-09-1992, came to be issued against the first party ( hereinafter called the workman) by the management on the allegation that be remained unauthorisedly absent from duty from 07-08-1991 to 20-12-1991 and also disobeyed the orders of the management to rejoin duly until 21-12-1991 . J was further alleged that be also remained unauthorisedly absent from duty w.e.f. 01-02-1992 to 30-04-1992 and then absented from duty from 13-05-1992 onwards.

S.O. 2139.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Gioveroinent bereby publishes the Award ( Ref. No. 5 2003) of the Central Government Industrial Tribunal-cuon- Labour Court, Bangalore , us shown in the Annexure in the Industrial Dispute between the management of Tungbhadra Gramin Bank and their workmen , received bythe Central Government on09-07-2007.

[No.1-12012/258 /2002- TR (B- 1)] _

3. Another charge sheet dated 16-03-1993 was issued against the workman oir the allegation that hẹ remained absent from duty without leave being sanctioned from 15-11-1992 to 29-01-1993 and thereby committed ruisconducts under Regulation 22 of the Tungabhadra Gramin Bank (Staff) Regulations, 1980.

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, BANGALORE

Dated: 26th June, 2007

PRESENT

ShriA.R. Siddiqui, Presiding Officer

C. R. No. 05/2003

IPARTY

B. Mahadevapра,

I PARTY

S/o Shrl Marrieappa , No. MIG 59, KLB Colony , GandhiNagar, Bellary, Karnataka Stale. The Chairman Tungabhadra GraminBank, (HeadOffice) , GandhiNagar,

Bellary,

Kranataka State

AWARD

4. The workman appears to have given repliesto both the charge sheels denying the allegations of unauthorised absence and the management not being satisfied with the explanations offered by the workman ordered DEto be conducted in both the charge sheets appointing the enquiry officer with intimation to the workman . He participated in the enquiry proceedings conducted against him on the aforesaid charge sheets separately and on the conclusion of the enquiry proceedings, the enquiry officer submitted bis enquiry findings on 20-04-1994 in respect to the first charge sheet and on 21-5-1994 with regard to the subsequent charge sheet bulding the workman guilty of the charges of misconduct of unauthorised absence as alleged in hoth the charge sheets. By a coramon order dated 24-406-1994 the Disciplinary Authority while forwarding the findings of the enquiry afficer to the first party proposed the punishment of removal from service by way of show cause notice calling upon him to furnish his representation within a period of 7 days from the receipt of the order with regard to the findings of the enquiry officer and the penalty proposed . The workman submitted his comments and explanation over the findings of guilt recorded by the enquiry officer as well as by the Disciplinary Authority and on the proposed punishment, the disciplinary authority not being satisfied by the explanation submitted by the first party confirmed the proposed punishment by order dated 17-08-1994. His appeal against the aforesaid order came 1. The Central Government by exercising the powers conferred by clanse (d) of sub-section (2A) of 4836

THE GAZETTE OF INDIA: AUGUST 4, 2007 / SRAVANA 13 , 1929

PART II-SEC 3 ( ii ) ] to be dismissed by the Appellate Authority's order dated 09-12-1994. It appears that thereafter the first party raised the Industrial Dispute before the Conciliation Officer concerned and that resulted into the present reference proceedings .

examined himself to depose to the fact that he was suffering from illness supported by the evidence of his mother examined during the course of enquiry . He contended that the findings of the enquiry officer are based on' no evidence' and contrary to the evidence on record suffering from perversity . He also challenged the action of the Disciplinary Authority in clubhing both the charge sheets and then passing the impugned punishment order on the ground that it suffered from violation of principles of natural justice . He challenged the order passed by the Appellate Authority , as well , contending that it failed to apply its mind 10 the requirements of Regulation 31. Lastly , he contended thar the impugned punishment order in removing him from service is grossly disproportionate and shocking and therefore, he requested this tribunal to allow his reference by passing an award serting aside the impugned punishment order passed against him with relief of reinstatement and all other consequential benefits .

5. Keeping , in view the contentions of the workman in his Claim Statement and the contentions taken by the management in its counter statement with regard to the validity and fairness or otherwise of the enquiry proceedings , a Preliminary Issue was frarmed on the said point and parties were called upon to leud evidence. The management examined the enquiry officer (common on both the charge sheets ) as MW1 and got marked 14 dicuments at Ex.Ml to M14. The first party examined himself by way of rebuttal evidence and after having heard the learned counsels for the respective parties this tribunal by order dated 20-10-2005 recorded a finding in the above said issue to the effect that the proceedings of enquiry conducted against the first party (workman) by the Second Party ( Management ) on the first charge sheet dated 17-9-1992 аrе люм fair and proper and whereas , the proceedings of enquiry held against the first party by the second party on the second charge sheet were fair and proper . Thereupon case came to be posted for evidence of the management in prove the charges of misconduct levelled against the workman nr the second charge sheet dated 16-03-1993 . The management to substantiate the charges examined one witness as MW2 by filing his affidavit evidence and in his further exutminution chief got marked 33 documents αι Ex . M15 10 M47, ( which documents were already marked at Mix . 1 to 33 during the course of enquiry ) . Once again , the first party examined himself by filing his alficavit evidence on merits of the case as far as the second charge sheet is concerned.

7. The management by its counter starement while repeating the charges of misconduct levelled against the first party in both the charge sheets contended that after conducting the DE against the first -party giving him fair and reasonable opportunity to participate in the proceedings. the enquiry officer having considered the oral and documentary evidence produced before him rightly, came to the conclusion that charges of misconduct against the first partyhave been proved and be has rightly been imposed with the punishment of removal firun service keeping in view the gravity of the misconduct committed by him. The management contended that the charges of misconduct of unauthorised absence levelled against the first party had never been denied by him during the course of enquiry except his self conflicting defence that sometimes he has submitted the medical certificates and some lines contending that he kok treatment from native Doctors being unable to obtain any medical certificare for the period of his absence from duty as mentioned in the charge sheets . The management allsn took up the contention that the reference on hand itselle deserves to be rejected on aconum of abnormal delay in raising the dispute before the concerned authorities as he was removed from service by order dated 17-08-1994, his appeal was dismissed by order dated 09-12-1994 and whereas he approached the conciliation officer by raising the dispute оп 11-03-2002 i.e. after a period of 8 years that too without uffering any satisfactory explanation for the delay caused in raising the dispute . Therefore , the management requested this tribunal in reject the reference .

6. The case of the first party workroan as made Out on the Claim Statement on merits with respect to both the charge sheets , to put in nutshelt is that the alleged unauthorised absence from duty referred into the aforesaid two charge sheets against him was due to the reason of sickness and be had submitted his leave applications and medical certificates , whenever, he remained absent from duty . By way of replies to the charge sheets he already has submitted that he suffered from mental disturbance and had to undergo the said problem during the aforesaid absence period . He also made it cleer that he was taking treatment from 'native' medical practitioners and therefore , on certain occasiσης he could not furnish the medical certificates . As far as the findings of the enquiry officer on the 2nd charge sheet holding him guilty of the charges , be contended that there was absolutely no evidence to justify the finding of the guilt recorded against him as the management did not lead any legal evidence to establish the charges of misconduer, On the other hand he

8. Now keeping in view the finding recorded by this tribunal on the first charge sheet dated 17-09-1992 holding that the DE held on the said charge sheet was nou fair and proper, let us in the first instance find out as to whether the charges of misconduct of unauthorised absence levelled in the said charge sheer have been substantiated by the management by leading evidence on merins before this tribunal .

[भाग - सखण्ड (ii) ]

9. MW2, who happened to be the Branch Manager during the period the first party remained absent from duty as alleged in the charge sheet has filed his affidavit before this tribunal giving out the details of the charge sheet with reference to the aforesaid documenis at Ex. Μ 15 ω Μ47. His statement at Paras 2 to 4 in the affidavit running as under:-

"The first party while he was working at Somasamudra brunch of the second party bank by submitting an application dated 08-08-1991 Babsented himself from work from 07-08-1991 and sought leave on medical grounds for the period 07-08-1991 to 14-08-1991 without submitting the Medical certificate.He did not report for work on 16-08-1991 and continued to remain absent unauthorisdedly .His absence was reported by the branch to the head office and the head office of the second party bank sent letters to first party calling upon bim to report for work and to explain the reasons for bis unauthorised absence . The letters addressed to first party bearing No. STF PWOLS 3085 91-92 dated 24-09-1991 , STF PWOLS 342691-92 dated 11-10-1991 , STFPWOLS 3796 91-92 dated 13-11-1991 is produced herewith and marked . The first party had received the letters dated 24-09-1991 and 11-10-1991 and the postal acknowledgement received therefore is produced as exhibits . The letter dated 15-11-1991 was retuned undelivered. Despite the above letters the tirst party neither replied letters nor reported for work till 21-12-1991 und also did not produce any medical certificate as required under the rules of the second party bank in support of his absence even at the time of reporting for work. The first party also did not subrait any explanation for his unauthorised absence even after reporting forwork and therefore the untethorised absence of first party for 136 days was treated as leave without pay by second party bank vide procedings of the Chairman no . STF TOB GEN 99491-92 dated 13-01-1992with right to initiplinary action for the same as it constituted conduct within the provisions of Second Party bank service regulations .

Again first party on 01-02-1992 availed a day's leave and although was- required to report fur work Ол 03-02-1992 (02-02-1992 being boliday) he absented from work without any leave being granted and by submitting leave application on 04-02-1992,07-02-1992 had sought medical leave without submitting any medical certificate as required under the leave rules of the second party bank. The Second party bank had called for his explanation for his unauthorised absence by serving him a letter STF PW OLS 4993 91-92

4837

भारत का राजपत्र अगस्त 4, 2007/ 13, 1929

dated 21-02-1992. The first party acknowledging the said letter sent a letter dated 27-02-1992 with offering any cxplanation for his unauthorised absence and assured to report for work un 29-02-1992. But he failed to report for work even on03-03-1992 as required and hence he was again served with a meno No. STF PW OLS 656691-92 dated 30-03-1992 and was directed to report for work and explain the reasons for his unauthorised abence. Despite the said letter first party failed to report for work and he joined duries only on 02-05-1992 by submitting a letter of even date. Not only he did not offer any explanation for his unauthorised absence from 01-02-1992 till 30-04-1992 but also did not submit any medical certificate in support of his absence on medical grounds as claimed by him . Therefore , the unauthorised absence of first party for 90 days was treated as leave without pay by the second party bank wide proceedings of the Chairman No. STF TOB GEN OLS 25391-92 dated 21-05-1992 with right to initiate disciplinary action for the sam as it consituted raisconduct within the provisiona of second party bank service regulations .

Similarly the first party absented from work unauthorised from 13-05-1992 to 10-09-1992 and he failed to offer any caplanation for his unauthorised absence despite he was sent lever STFPWOLS 1171 92-93 dated 27-05-1992 and his absence for the said period was treated as leave withouty by serving on him proceedings of the Chairmanno STF TGB GEN OLS 158892-93dated 13-01-1993 with right to initiate disciplinary action for the same as it constituted a misconduct within the provisions of second party bank regulations.

10. During the course of his cross examination by the first party nothing worth was elicited from his reputo so as to shake his testimony on the material particulars of the case as deposed by him in the affidavit. The suggestion made in MW2 tust first party was submitting leave applicatiors for the period of his absence and that he went on leave for his absence period his leavebeing sanctioned have been deniedby the witness . The suggestion,that the first party submitted his medical certificates many times and some times his leave letters were not accompanied by medical certificates , he being treated from the native doctors was also denied by MW2 . Except the aforesaid suggestions nothing worth was brought out in the cross examination of MW2 to speak to the fact that the absence of the first party during the periodmentioned in the charge sheet was an authorized absence and not an unauthorised absence.

11. The first party in his affidavit at Para 3 averred that it is due to his ill health , he could not attend the duty during the period frown 07-08-1991 to 14-04-1991 and at thar 4838

THE GAZETTE OF INDIA: AUGUST 4 , 2007 /SRAVANA 13. 1929

(PAR: 11- SFC. 3

applications from time to time and could not subnail the medical certificares heing treated by the native doctors

14. After having gone through the records , I find substance in the arguinents advanced for the management. As seen above . MW2 . the then Branch Manager . under whom the first party worked during the relevant period. in bis affidavit in no uncertain terms has marcated the details of the period of authorized absence from duty by the first party and also has referred to the various documents aik Jetters where under the first party was called upon 10 geve his explanation with regard to his unauthorised absence and also to report for duty immediately.

time he was taking treatment froro native Vydhya and that he has submitted leave application for the absence period. He stated thit whenever he was absent from duty he availed leave as par the bank Regulations . He stated that his absence frotn duty was beyond his control and not with any malafide intention. He could not submit the medical certificate being treated by native Vydhya and medicanes. Al Para 4 of the affidavit he stated that as he was not keeping wall , he was not in a position to make any correspondance with the bank. At Para 5 he stated that his absence was on account of his illness and he submitted leave applications some times being accompaniedby medical certificates . During, the course of his cross examinationdhe admitted that be reroained absent from dury from 07 (8-1991 to 20-12-1991 by giving reasons in his leave applications that he was suffering from joint pains and stomach ache . He admitted that though he asked for 8 days leave but remained absent continuously for 136 days . He staled that he has given toedical certificates and denied the suggestion that he has not furnished any medical certificate despite several reminders by the management made to him. He admitted that again from 01-02-1992 ເທ 30-04-1992 1.e. continuously for 90 days be remained absen though according to his leave application, he had sought leave for two days only . He admitted that once again from 13-05-19921010-09-1992 ic. for about [ 23 days he remained absent applying the casual leave only for two days. When hewas confronted with his reply to the charge sheet markod at ExM39 beadmined that the reason for his absence given in the said reply were family probleras ie , his sister leaving the house without any trace and beallch problems .

As noted above the above said scatemeni ud MW2 lias not at all been challenged during the course of Ibis cross examination . Not a single suggestion was made m MW2 when he stated that the absence of the first party from duty during the leave period was unauthorised absence and that he failed ro report for duty without any explanation for bis unauthorised absence despite receiving the leriers from the management The suggestion made to MW2 for the first party to the effect that he always wen on leave after the leave being sanctioned and that he submitted medical certificates some times along with leave applications and some times he could unt submit the medical certificates being treated by the native doctors as noted above, has been denied by MW2 Moreover , these are the suggestions made on behalf of the first party without there being any evidence being produced by him suggesting 10 the fact that his period of absence was always against the sanctioned leave and his leave applications were accompanied by the medical certificates . On the other hand, the cat comes out of the bag when the first party was subjected to cross examination by the managemem . 1 . in no uncertain terms admitted in the first instance the faer that though he asked for eight days leave ( from 07-08-1991 to 14-8-1991 the remained absent continuously for 136 days . He furher admitted that from 01-02-1992 to 30-04-1992 i.e. for continuous day's he remained absenr from duty though he applied leave for 2 days only . Hethen admitted that once again from 13-05-1992 to 10-10-1992 i.e. for about 123 days he remained absent though applied cusual leave for two days only. Therefore. from the above said statemem of the first party himself it becomes wystal clear that his absence from duty was not against the sanctioned leave. For the first time he was sanctionedleave just for a perind of & days but resthaioed absent from duty for a period of 136 days On the second occasion he was absein from dury for 90 days though his leave application was only for two days . Similarly , on the 3rd occasion he remained absent from duty for a period of 12. During the course of arguments learned counsel for the management submitted tha the charges of misconduct of unauthorised absence levelled against the first party as levellied in the first charge sheet have nor onlybeen proved by the statement of MW2 and docurnents but also by way of the very admissions made by the first party in his cross examination . He contended that absoluteiy numedical certificate for any period of absence was subunitted by the workroan either while proceeding on leave or at the time ofjoining the duty at any time, therealker. He contended that the stand of the workman that he was suffering frond ill health thereby not able to attend duty is again selfconflicting as in his reply to the charge sheet he has given reasons of his absence from duty other than his ill health. Therefore, learned counsel submided that the first party not only remained absent from duty unauthorisedly but failed to report duty despite the several letters issued to him to report for chuty making it clear to him that the period of absence from duty has been treated as uriauthorised absence. Therefore, thertby he committed the misconduct of remaining unauthorisedly abasent from duty and so also in disobeying the orders of the management to report for dury.

13. Whereas , learned counsel for the first party , submitted that the first party had been submitting his leave

123 days though his leave application was only for two days. In the face of the above said admissions hy the first party it was too much for him how to take a stand in the cross examination of the MWI suying that his absence was always against the leave sanctioned . Now, coring to भारत का राजपत्र अगस्त 4 , 2007/ आषण 13, 1929

[ भाग -खण्ड 3 ) ]

his statement that some times he submined medical certificates for the treatment he received and wame times he could not do so , the treatment being given to him by the aative doctors. There was no evidence produced by him to the above effect . Infact at no time his leave applicazionwas accompanied by any medical certificate . This fout he admits in his affidavit itself, bul denies it during the course of his Joss examination before this tribunal . Therefore, there canrail the any hesitation for this tribunal to come to the conclusivia that except for the period of days on the first eccasion and for 2 days each on the second and third cccasions, his absence for the remaining period shown in the charge sheet wus unauthorised absence , a misconduer under Regulations 22 of the aforesaid regulation nacned by the management hank. In the result, it must be held that charges of unauthorised absence as mentioned in the charge sheet coupled with the charges leveled against him in not reporting for dury despite the several letters served upon him to do so , have been proved by the management by sufficient and legal evidence.

15. Now coming to the 2nd charge sheet dated 16 03-1993. As already noted above , the DE conducted te this charge sheet is held to be tuir and proper . In the face of the finding recorded by this tribunal , an heavy buráce was cust upon the first party to establish before chis crituoul that findings of the enquiry officer suffered fruim perversity. On going through the fintings of the enquiry officer . I do not find any substance in the arguments advanced for the first party so as to suggest that finding suiterert som perversity . Here again the fact that the first party cermained absent from duty for the periox! mentioned in the charge sheet has never been deniert by him except laxing the contention that it was once again un account af bis ill bealth and that he could pot produce the medical certificatesbeing weaned by the native doctors . In under in substurgiate the charges , the management during the course of enquiry produced the two leave applications dated 31-10-1992 and 16-11-1992 made by the first party and the various letters wrinen by the bank to the first party in keeping him informed that his period of absence has beencreated as unauthorised absence as it wits the absence not against the sanctioned leave . The enquiry officer has given his sound and cogent reasonings in conning to the เonclusion that the charges of misconduct have been proved against the first beyond any reasonable doubt . 1 feel itis necessary and worthwhile to bring on record the very reasonings given by the enquiry offices in holding The workman guilty of the charges fomond on pages 7 t บ 10 of the enquiry report under the healing "My Observations To above lasues as under

MY OBSERVATIONS TO ABOVE ISSUES :

( 1 ) Whether charge sheeted employee has applied for leave from 09-11-1992 14.11 1992 and samewas sanctioned by head oflice and at the time of sanction whether cherge sheeted 32-9 G107-4

48.39 employee was suretly instructed to report hack for lady on 16-11-1992 . From the exhibit MF... it is clear that the charge sheeted employee had requested six days Pl . from 09-11-199210 14-11 1992 on account of younger sister marriage fixed on 12th November 1992.As pe exhibit ME.8 it is clear that the head office has sanctioned PL from 09-11-1992 to 14-11-1992 under reference OLS 1119. 92-93 dated 05 LE - 1992 with a strict instructions 1 report hack for duty on 16-11-1992 and it is also mentioned that του kore exemtoon . On the other hand defence has not disputed about these ducumerus .Hence, it is established that charge sheeted employee has applied Icave trum 09-11-1992 10 14-11-1992 and same was sanctioned by head Fice . Charge sheeted employee was strictly instructed to report back for duty on 16 11-1902.

(2) Whether charge sheeted employce has extended leavε υριο 19-11-1992 with prior sauction from head oflive against the said instructions and whether be was expected 10 jninbuck for duty on 30 11-199ב.

From exhibit M.F.2 it can be seen that charge shected employee has extended leave upto 19-11-1992 due to unavoidable circumstances. fle has stated in the letter due to sum functions in connection with his sister mariage, he is requesting to consider the extension of leave upto 19-11-1992 dis extension of leave is nor having prior sanction. On the other hand defence has not disputed This document hence , charge sheeted employee has extended leave upto 19 11-1992 willyut prior satation from Head Office and charge shected employee was expected to join hack for duty on 20th November . 1992 .

(3) Whether charge sheeted employee cominued to remain absem without any further information and without sanction drum 15-11-1992.

Presenting Officer has relied upon M.E. 3 un M.F. 7. Μ.L. is the leurer written by Sumasamudra branch manager to sen Manger. Staff Section , head office Bellary under reference TGS.SD STF 611092-93 VSS 214 dated 21-11-1992 wherein the hits slátce that charge sheeted employee has so far m resumed duties ME4 is the letter arinen from Somasamudra branch 10 General Manager . Staf ! Sextion. HO . Bellary under reference TGS.SD 6HO STF 92 92 VSS 230 dated 26-11-1992 wherein he has stated that THI: GAZETTE OF INDIA : AUGUST 20 SRAVANA 13.:929

Stri 9. Maltadevappa nel reported fir duty. M.E.S is the letter written . by Sumasmudis branch to the Sr. Manager , Statt Secure.HO. Be.lary uraderreference TGBSD 6H0-92-93VSS dared 111-12-1991 wherein he has stated th Shri Mahadevappa has not come to the Bar's Since ( 9-11.992. As per M.E.6 it is cleur tha: Shri B.Mahadevappa has not reporr fur duty ill 100-12 1992. As per M.E.7 . ir is clear that Shri B.M. Mahadevappa has remained abses: 1 and not come to the branch on the user nand Defence has not disputed about these documents . hence it is clear than the sharge shreeted employee has continueri Semair absent without any further inturmarind withusa sanction from 15-11-194

14: Whether or explanation was called tojoin back for duty immediately . Presenting Officer has relied upon M. , 10. as per this a ١٣١١٢٢ beer sent in Shri B.M Mahadevappa frneri Sr Manager, Staff Section , Head Office. Bellary. It has been stated Iliat charge sheered employee has neither subrnitted lease application not reported for duty. Remanding absent for day without any message amounts to unauthorised absent . Inspite of several advises , charge sheeted employee has Coplanded in old habit of remmairing namhorised absence for duty . He has been instructed to report back fur duty inmedinols Iurther an explanation was also called on him . On the other hand Delence Represencrive has mut disputed these ckcaments . Ilence it is clear thar Bank has called a explanation join back to duty immediately.

Whether charged sheures emplujee has reported back for duty milyon 301-1903 As per exhibir M.L. is clear that charge sheetal employee has reported hur duty ou 30thJanuar 、 3axinesaidletter has ant mentioned the reasons for the long absence. On the other hand Deizace has not disputed ahol the said document Hence itis clear that charge sheeted employce has reponed forduty on 30-01-1993 caly .

By remaining abrem with 15 : 1924-19-1943מ whether charge sheeil emplose as violated guidelines tise bank and regulation 22 l the T. Bank Maft Sea viceRegulation 1980

Presenting Officer has stated thar charge sheerec employee has remained absent fo

[PART SLL . 3(ii) ) duty Jrum 15-11 1992 10 29-01-1993 basang on the exh.bit M.E. 9 ( Proceedings of the Chairman treating the said period as one withour sanction ) . M.F.14 ( extract of abcordante stening register ) . ME . 13 extract of апенале marking register this clearly shows that the said period has been treated as opre without sancrion On the other hand Detence Representative has taken the plea that charge sheeled employee has availed leave frum 15-1992 29-01-1993 and reasons for ailment was ill health . He has also stated that he has raken treatment fraan luccal Docters who will not assue any certificate so he camkit produce she centicate.

the above contention of DR is wue charge meeled Empinyre would have mentauned the same whole joining for daily fre . M.F. เป mmed: arely after receipt of proveeding of Chairman eating the alsive period as ahseni Hence . I am of the opuson that the plea of the DK thar charge sheeted employee was sufiering from ill health und raken treatment from, local Ducior 28 far fumth truth and cresteal Tue the purpose. So his plea is not accemahi . As per exhibi : M 1.15 and M.F.. 16 it is clearly advised that Medical cerulicates sheel: e smiled along with lease applicatoa immediately alter keeping hiselt absent fo acy fun salt membes hence plea or Telente Representative is not acceptable is per exh.bu M.F..

Basing its are findings discussed ra detail underSt Nous rohit as established ilur Shri B. Mahadevappa had applied leave rom 9-11-21 14 : 1-10021. sixds and in was saneioned Erem Hengd Ottice While sanctioning the leave ine was stringly instracted to repen hack for duty from 16-11-1992.charge sheeted employee extended the leave up 1911-1902d Ins letter dated 161 1 Though he was expermed to report back finr Juis on 20 November . 1992. hentintedto remain atise without futter information from 151-192019dt 1993 e. for 76 days, he has vinlated the guidelines of the Bank aad also Service Regulations is also established hear explanation was called for his abscur rideFetter daskal -1992. Chieye shrece employees long shence has also effectse mr meng of the back , Hashe Turnishable under Serviceregulation read with regalation 2221 Tungabadia Gramin Backstalto Servier Regulation 20456 " भारत का राज [ भाग- खण्ड 3 ( ii ) ]

16. Therefore , from the reading of the afor reasonings given by the enquiry officer, by ou stretch of imagination it can be said that bis conclusion in bolding that the first party committed the misconduct of Loauthurised absence was without any sufficient and legal esidence The enquiry officer in length bas discussed the oral and documentary evidence produced before him and has rightly come to the conclusion that the first pamy committed the misconduct of unauthorised absence from duty for the period mentioned in the charge sheet . Theretore. findings of the enquiry officer being supported by sufficient and legal , evidence, in turn , supported by gent and valid reasonings by no stretch of imagination They can be termed as perverse to be interfered at the banks this tribunal . In the result, it is to be held that the charge misconduct leveled against the first purty in the socond charge sheet also stands proved.

4841

अग्मत 4 , 2007 / श्रवण 13 , 1929

functioning ni baok business. lo the result, reference deserves ne merit and hence the tollswing award .

AWARD

The reference stands dismissed . No costs .

(Dictated tu PA transcribed by her currecred and signedby me on 26th June , 2007 ) .

A. R. SIDDIQUL, Presiding Ot Fer नई दिल्ली, 9 जुलाई, 2007

का.आ. 2140 औद्योगिक विवाद अधिनियम, 104 ( 1947 का 14 ) को धारा 17 के अनुसरण में , केन्द्रीय सरकार तुंगभद्रा ग्रामीए बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और ह कर्षकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विबाद में कन्द्रांच सरकार औद्योगिक अधिकरण, बैंगलौर के पंचाट ( संदर्भ संख्या 09/1994 ) को प्रकाशित करती है , जो केन्द्रीय कार 09-07-2007 को प्राप्त हुआ था ।

[सं. एल-12012/227/93- आई. सा. ( बी -1 ] अजय कुमार, डेन्क अधिका NewDelhi , the 9th July,2007.

5.0. 2140. In pursuance of Section 17 of the Industrial Disputes Act . 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No.09/ 1994) of the Central Government Industrial Tribunal -cum- Labour Court , Bangalore , as shown in the Annexure in the Industrial Dispute between the managemem ot Tungabbadta Gramina Bank andtheir workmen , received bytheCentral Government on 09-07-2007.

[No. L-12012/227/93- IRTBI

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT, BANGALORE 560022

Dated: 22nd June . 2007 PRENENT:

Shri A. R. Siddiqai, Presiding Officer C. R. No. 09/1994

I PARTY

The General Secretary..

Tongabhadra Gramin Bank

Employees Union ,

144, Kappeal Road,

Bellary-583103

PARTY

The Chairman ,

Tungahhadra Gramin Bank . No. 32, Sanganakal Road,

Gandhi Nagar.

BELLARY- 589 103

17. Now, coming to the question of quantum of the panashment . It was well argued for the management that 11e first party is a chronic absenter having absolutely no regard for his dury and that because of his prolonged unauthorized absence. the management hank's functioning has been affected causing inconvenience to its custumers at large. As seen lium the first charge sheet, he remained assent from July for a Intal period of 226 days and whereas as per the second charge sheet his period of absence was 76 days only . Though he claimed to have suffered from i ] ] health , produced no medical certificates either along with the leave application or while reporting for duty. Infact, as need above, he remained absent from duty against the leave sanctioned only for about a period of 12 days and far the rest of the period he was remaining absent nauthorisedly even without leave applications , much less, Being accompanied by any medical certificate . The srand reven by him that he was being treated by the native doctors Pas not been supported by any evidence except his self serving statements .Therefore, keeping in view the conduct the first party, in my opinion he deserves no sympathy Jum the hands of this tribunal . He deserves no punishment lesser danrentoval from service . The reference on hand as

THE GAZETTE OF INDIA : AUGUSTAT / SRAVANA 3. 1929

PART I-SFC.i AWARD

the duplicate and sub - standard seed suppired by 30u the. farciers have aut only lost the insenent made on the cars but also have insa their valuable Top itself.

I The Ceatral Government by exercising the powers cutterred by clause ( d ) (if sub - section 24 et 22 Serum 10 of the Industrial Dasputes Aer, 1947 has refered this dispute vide Onder No. L- 12012227/93 - IR B - J) dated 3rd January , 1994 for adjudication ne ארו chedule!

SCHUDULE

You have thus caused heavy loss to the farmers who had purchased the seeds from you which ultimares resuhed : ncomplaints antes l'image to the lak Hence , you above sale of seeds is detrimenta : the interests at the bank By usangyoua official positior for profit aadby actingmaster derrimental to the Interests ofthe hans you have comrnalled misconduci under Regularis : 30 of TGB Staff Service Regulations. 30

CHARGE : 2

Whether the action of the management ut ungabhadra Gramin Bank in imposing the pera.ry of Sumppage of Seven increments with cumul cafectin respect of Shri T. Basavareddy. Clerk vide pox.crdings dated 27-03-1992 is legal andjustific( ? to what rebef the workman is emiried . "

Aborge shemlined 24-02-1991 came to be isterl Ine fust party workerian in the fellowing tesnis .

"Verasthere are prana focie grounds for believing that you have beer yuilty of misconduct . the particulas whereof are giver, below. His charge sheet has been drawn up against you and you are hereby reqiul submirta me within 7 days of receipt f 1miserge she ta slatement in wreling scitarny lorth y defence.any and showing cause 25 in why propriate penalty should not be imposed upon

CHARGE: 1

Watie an were working at Ginigera Branch , you eight outside artvities anul involved yo..well

instelling business . During June -July.

While working as luniver Clerk at nur imagera braich you have sold about 70 Kgs ul collunseeds farmers / Lu - to es el surrounding ilages c Ginigera Yuu are thus solved yousela subsidiarys . As per tegulation No.21 of TGB ( Staff Regulations, 1980 whiza yo are bound, you were supppused nnt ro engage yousell in any any outside the scope of your cmployment without the express por permissica from the contpetent authority . has indulging your in the activity of swing corensecos yuu have committed lussen of the ssirlite No. 21 זי TGB Staff, Regulations . 961, by commung reach ofthe said Regulatusul 21 of 70815.1 Service Reguations . 1950s have commined miscondust under Rapalaran 30 Service Regulations .: 480 "

y sold around 70 Kgs . of seeds

larmen of Giripera and surrounding them include following farmers of

Shai Suwappa / Sanappa

2. Bab Babusab Bagali

Sadda : Uppar Sto Kutrappa

316 hdn Bay Stu Hassan Sab

akappa Sao Nigappa Ginipera .

ng the f . No. 103 havcavanled

١٢٠٢u Gingera branchs

seeds 10 he said carmers arming den at they werenf " CH32 " variety were they were not of that standard ne quaiety . The fateners rouck it ist granted because of youm очтеп алі саmе tо know thiu the seeds e quality seeds only after ahead 2 months of g.whoca time the farmers had inace co.ilerable avestment on the crops by way er: ... pesticides ,Cabour charges cic . Because of

3. The explanation tuensshed by Be Just parrs being fonul astanary Domnestrinqury ordered פ:וחובבב the enuclasion of the enquiry proceedings . the enquiry officer subarutted his repstcatel 16-10- with a conclusion that poth the change evelled against the first party in the charge shee have not been proved and that the first pairyst guity of issued charges . The Disciplinary Authority however tid not agree with the findings of the engcity office exoneraring the lirs party from the charges levelled against him and giving his ewn wasuns held the wurkman geing of the charges vide der dated 20 0 1992 and sear Hisorder copy of the firs parly along with the enquiry reperr proposing the prashment of stoppage of en increments with cumulative effect asking the first party to show was חןש writing as to why the arxwe said penalty should not be imposed upon him It appears from the enquiry reenres that is response to the said order of the Disciplinary Authority, the first para sdermitted bes explanatina dated 26-03-1992 as to way the enquery officer's farkings sacaid he accepted and that the reasons given by the Disc.pimar Authority in not accepting the same were against the evadence brought un reconi . However , the Disciplinary 4843

भारत का राजपत्र अगस्ते 4, 2007/ श्रावण 13. 1929

[ भाग 11 खण्ड 3 (ⅱ) ]

Authorityby the impugned punishment order dated 27-3-1992 rejected the above said explanation offered by the first party and confirmed the above said proposed punishment of stoppage of seven increments with Cunmulative effect. The first party then made an unsuccessful anempt in preferring appeal against the said punishment urder to the board of Directors , Tungabhadra Grameena Bank Head Quarter, Bellary as his appeal carde to be dismissed by order dated 22-10-1992 . The first party theo raised an industrial dispure resulting into the present reference proceedings.

5. The management by its Counter Statement while contending that the Disciplinary Authority has got every right and authority to initiate the disciplinary proceedings ugainst the first party under the aforesaid Regulations rightly. conducted the enquiry proceedings and rightly differed from the findings of the enquiry officer in holding the first party guilty of the charges . The Management contended that after the enquiry findings were submitted In the Disciplinary Authority by the Linquiry Officer , on detailed examination it was found that the enquity officer did not appreciate the materials properly and has come to the conclusion only hy relying upon the evidence of the first party workman and therefore , the findings were perverse.The Disciplinary Authority therefore , on going through the entire enquiry records came to the conclusion that there was sufficient material on record to establish the misconduct committed by the first party workman and therefore , rejected the findings of the enquiry officer and issued a show cause notice dated 20-02-1992 proposing the punishment of stoppage of seven increments with cumulative effect giving the reasons in coming to the conclusion that charges of misconduct were proved against the first party. Thereafter , the first party was called upon to submit his explanation if any , over the proposed punishment. Therefore , the managerment contended that the reasonings given by the Disciplinary Authority in holding the workman guilty of the charges as against the findings of the enquiry officer exonerating him from the charges was legat und justified in the light of the evidence brought on record and that the first party by way of second show cause notiec was given an opportunity of bearing on the quantum of the punishment and in the result , therewas no violation of principles of natural justice and requested this tribunal on reject the reference.

6. As, could be read from the onder sheet maintained by this tribunal . on 19-1-1999 a memo was filed for the first party workman conceding the fairness and validity of the enquiry and with the consent of the parties the enquiry file papers were marked at Ex. MI . By award dated 1-6-2001 , my learnert predecessor rejected the reference.Aggrievexl by this award the linst party approached the Hon'bleHigh Court in Writ Petition No. 39265/01 . His Lordship of Hon'ble High Court quashed the impugned award and remitted the matter back to this tribunal for fresh adjudication expeditiously.

7. After the remand, I have heard the learned counsels for the respective parties and posted the matter this day for award. Therefore , in the light of the respective contencions of the parties and in the face of the finding recorded by this tribunal , that the DF conducted against the first party is fair and proper ( heing conceded by the first party) the point to be considered would be "whether the impugned punishment order dated 20-7-1992 passed by theManagement/Disciplinary Authority in disagreeing with the findings of the enquiry officer in exonerating the 4. The first party in his claim statement challenged the very authority of the management in conducting the enquiry proceedings under the provisions of Tungabhadra Gramin Bank ( Staff) Service Regulations . 1980 in the absence of certified standing orders of the management and took a contention that there being no certified standing orders as required under the Industrial Employment (StandingOrders ) Act , 1946. With respect to the meris of the case the first party contended that after holding the er.cuiry , the enquiry officer submitted his report datest 36-10-195 ] and after considering the evidence broughton recordhe came to the conclusion that the first party as not Endulged himself in selling cottonseeds and there was no lar. Lage to the image ofthe hank. He came to the conclusion that both the charges levelled against the first partyhave out been proved and gave his findings accordingly . However, theDisciplinary Authority having no powers to differ with the findings of the enquiry officer under the aforesaid Regularions has given its own findings to the ellect that on the basis of the evidence led during the course of enquiry, charges of misconduct have been proved and le gave his findings contrary in the findings of the enquiry offtoer . The first party contended that before passing of this order in giving the findings contrary in the jindings of the enquiry officer, the Disciplinary Authority did not issue a proposition notice to him setting forth its proposal to differ from the findings of the enquiry officer along with the reasons therefore and called upon the first party to show cause as to why the Disciplinary Authority should not set aside the findings of the enquiry officer exonerating him from the charges .He was not given any notice and no opportunity was given to him in total contravention of the principles of natural justice and proposed the punishment of stoppage of seven increments with cumarlative effect asking him to give representation on the quantum of the punishment itself. Therefore , the first party contended that the findings of the enquiry officer were well based on the evidence on record and the Disciplinary Authority was not justified in coming to the conclusion contrary to the findings of the enquiry officer and since the order to the Disciplinary Authority suffered trom. violation of principles of nabaral justice not affording him opportunity of hearing before such punishment was proposed holding him guilty of the charges , is liable to be set aside as illegal , arbitrary and discriminatory in nature.

4844

PART ( Stc. Sin THE GAZETTE OF INDIA : AUGUST 4, 2007/ SRAVANA 13.1929

first party from the charges of misconduct leveled against ham is legal andjustified".

along with the report and in the light of the principle laid down by their Lordships of SupremeCourt in the aforesaid decision. I am not inclined to accept the arguments advanced for the management that principles of natural justice have been adhered by the Disciplinary Authority before passing the impunged puanislitnent order On the peint as to what should be the procedure to be followed by the Disciplinary Authority while disagreeng with Le findings of theEnquiry Sffice in exonerating the delinquent concerned from the charges of misconduct alleged to have been committed by him , their Lordships of Supreme Court ar Para 18 of the said decision laid down the principle as under:

8. Learned, counsel for the first party in bis argument submined that the impugned punishment order suffered from violation of principles of natural justice as the Disciplinary Authority while disagreeing with the findings of the enquiry officer did not afford any opportunity of hearing setting forth the reasons in coming to the conclusion difterent from the conclusion arrived at by the enquiry offices . He contended that the Disciplinary Authority without setting forth the reasons and issuing proposition notice in disagreeing from the findings of the EnquiryOfficer - motorecorded the findings of the guilt holding the workman guilty of the charges and issued a sbow a cause notice along with the enquiry report calling upon the first party re submit his explanation coly on the quantum of the punishment . Therefore , learned counsel subroutted that if at all the Disciplinary Authority wanted todiffer from the findings of the Enquiry Officer . ir ang have set out the reasons in detail with a proposition nutive as to why he should disagree with the enquiry lindang giving him opportunity of hearing on the point and since in has nut been done in the present case , the principles of Datural justice have been violated and in the result, the impugned punishment is liable to be set aside . To supp רומ bis argument learned counsel cited a ruling reported in AIR 1998 SC page 2713 Punjab National Bank & Others Appellants V. Kunj Bebari Misra . On the point that Regulations referred to supra do not confer powers upon the Disciplinary Authority to issue the charge sheet and conduct the enquiry proceedings, learned counsel referred to a decision repened in ILR 1996 Kar2069.

9. Whereas , learned counsel for the management. vehemently. argued that the order dated 20-02-1992 passod by the Disciplinary Authority in disagreeing with the fandings of the Enquiry Sfficer has very much set out the reasonings based on the materials brought on record during The course of enquiry and this order was communicated to the first party along with the enquiry report seeking his explanation to the quantum of the punishment and therefore, it cumpotbe said that the first party was tol given any opportunity of hearing before the impinged pun.islument order was passed . Learned counsel therefore. submince that in passing the above said order . the Disciplinary Authority has very much complied and säbered to the principles of natural justice as contemplated under the principle laid down by the ir Lordships of Supreme court in the case referred to supra cited on behalf of the fust party . To support his arguments learned counsel also filed a copy of the decision of the Supreme Court reported 16 AIR 1998 SC 2713 .

"The Disciplinary Proceedings break into two stages . The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Enquiry Officer's report and the delinqueni employce's reply re in The second stage begins when theDisciplinary Authority decides to impose penalty on the basis of the conclusions . lh is necessary for the authority which is to finally record and an adverse finding to give hearing to the delinquent officer . If the Enquiry Office had given ari adverse finding . the first stage requedarianity to be given tu the employee to represent to the Disciplinary authority. Even when an. carlier opportunity luad heen genated to them by the Enquiry utisver . In will . therefore , not stinid to reason thul when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity shouldbe granted . The fust stage of The enquiry is not completed rill the disciplinary authority has recorded in fuxdings Under Regn & the enquiry proceedings can be conducted either by an enquiry oflicer or by the disciplinary authority itself . When the enquiry is conducted by the enquiry officer his report is nот final or conclusive and the disciplinary proceedings do not stand concluded . The disciplinary preecedings and concluded w decision of the disciplinary authority . It is he disciplinary authurily which can impose the penalty and nor the enqwizy officer. Where the disciplinary authority differs with the view of the acquiry office : and proposes to come kratlifferent conciusxon , there is no reason as to why an opportunity of hearing should not be granted I will be roust unfair aral iniquitous where the charged officers succeed before the enquiry officer they are deprived ofrepresenting 10 the disciplinary authority beture that authority differs with the enquiry officer's report and . winde recording a finding of guilt . imposes pumisimeter the officer. In any such situation the charged ulliver must have an opportunity to represent before the Disciplinary Aurtariy befor final findings on ปะ scharges are recorded and punishment imposed. Tinis 10. On going through the records , more so . the aforesaid order dated 20-02-1992 passed by the Disciplinary Authority and communicated in the first party 4845 [भाग-खण्ड 3 (ii ) ]

भारत का राजपत्र अगस्य 4 2007/ वन 13 , 1929

is required to be done as a part of the first state of enquiry. "

shoulddiffer from the findings of the enquiry officer . In the result, the principle laid down by their Lordship of Supreme Court which infact have not been disputed by the managerment also, must lend support to the cause of the first party that he has been denied the opportunity ofbearing by the disciplinary authority before the authority passed an oner giving findings against the first party holding him guilty ofthe charges and before proposing the ponishment of stoppage of increments , as noted, above . Therefore, in the light of the aforesaid discussion, the only conclusion to be drawn would be that the order dated 20-02-1992 passed by the disciplinary authority proposing the impugned punishment resulting into the impugned punishment order dated27-3-1992 suffered from violation of principles of natural justice and therefore, both the orders are liable to be set aside not being sustainable in the eye of law. In the aforesaid decision their Lordship of Supreme Court did not remand the matter to the disciplinary authority for the start of denova proceedings to give such an opportunity of hearing to the delinquent concerned before the punishment order was passed as the dispute in the said decision was more than 15 years old, one of the delinquent being already dead and the other delinquent had been attained the age of superannuation . In the instani case also it appearsto me that it will not be in the interest of justice in remanding the matter to the Disciplinary Authority toafford such an opportunity ofbearing to the first party before passing of the impugned punishment order as the dispute in the present case also is for the alleged misconduct committed in the year 1992 and we are now in the year 2007 , a period of about 15 years having already been elapsed. One more reason not to remand the matter for fresh disposalto the disciplinary authority is the nature ofthe alleged misconduct said to have been committedby the first party workman not loosing sight of the fact thust the findings of the enquiry officer have gobe in his favour. Inthe result , the only order to be passed in this casewould be to set aside the impugned punishment order directing the management to release the seven increments stopped by it against the first party with consequential benefits . Hence the following award:

AWARD

The management is directed to release the se increments stopped by it and shall reimburse the first party for the loss he sustain on account of stoppage of those seven increments from the date of the punishment order till today and herein onwards . No Costs

(Dicated to PA , transcribed by her corrected and signed by con 22nd June, 2007)

11. Therefore, from the reading of the aforesaid observations made by their Lordship of Supreme Court, it becomes crystal clear that the delinquent concerned cannot bedeprived of representing to the disciplinary authority before that authority differs with the enquiry officers report andwhile recording a finding of guilt imposes punishment ar. the officer (delinquent concemed ) . Their Lordship further beld that in any such situation the charged officer (the delinquent) must have an opportunity to represent before the Disciplinary Authority before final findings on the charge are recorded and punishment imposed. Therefore, in the light of the principles laid down by their Lordship of Supreme Court at the aforesaid para and the observations made by them at Paras 16 & 17 of the decision, it gets clear that the Disciplinary Authority in case of disagreeing with the enquiry officers findings must inane a show case notice to the employee cuncemed, giving him the tentative reasons for is disagreement with the enquiry officers findings and after considering the representation made by him to the show cause police, shall pass fresh orders recording his reasons. It is further made clear that while doing so the Disciplinary Authority shall send the enquiry report along with the show cause notice issued the first party. In the instant case as argued for the first party this requirement of issuing the show cause notice to the first party giving him the tentative reasons for disagreement to the caquiry officer's findings has not been fulfilled. To the instant causewhat the disciplinary authority has done is that after it received the enquiry officer's findings , went through the findings and passed an order dated20-02-1992 bolding the workman guilty ofboth the charges levelled against him in the charge sheet by giving out the reasons in coming to the conclusion that the first party was guilty of the charges . By the aforesaid order , the Disciplinary Authority proposed the punishment in question and called upon the fist party to show cause as to why the punishment should not be confirmed Therefore, before passing this order in proposing the impunged punishement and recording the finding that the fust party has been found guilty of the charges, the disciplinary aushority did not given opportunity ofbearing to the first party by issuing a show cause notice and setting out Scolative reasons for its disagreement with the enquiry officer's finding calling upon his explanation as to why it should disagree with the findings of the enquiry officer . In the instant case the disciplinary straightaway after the receipt of the enquiry repurt held the first party guilty of the charges giving the findings of its own and then proposed the impunged punishment and the only opportunity of submitting the explanation given to him was with respect to the quantum of the punishment and Tut on the point as to why the Disciplinary Authority

A. R. SIDDIQUL, PresidingOfficer 1816

THE GAZETTE OF INDIA : AUGUST 4. 2007/SRAVANA 15.199

नई दिल्ली , 11 जुलाई , 2007

का.आ. 2141. औद्योगिक विवाद अधिनियम , 1947 (19 क. 14। कां या 17 के अनुसरण पं , केन्द्रीय सरकार ई. सी. एल. के प्रबंधतंत्र के सर्वदा नियाजकों और उनऊँ कर्षकारों कं चौच, अनुबंध मं निर्दिष्ट औद्योगिक विवाद में कंन्द्रीय सरकार औद्यानिक अधिकगण आसनस्तैल में चाट संदर्भ संख्या 19/1996 ) को प्रकाशित करती है. जां अंन्द्रीय सरकार को 11-07-2007 को आप्त हुआ था ।

[सं. एल-22012 /485/ 1995- आईआर (सी -1[ ) ] अजय कुमार गौड़, डेस्क अधिकारी New Delhi , the 11th July . 2007

S.O.2141 , Ito pursuance of Section 17 of the Endustrial Dikputes Act . 1947 ( 14 of 1947 ). the Cenrrai Coverлтет ветеry publishes the award (Ref. No 19/1996 ) oftheCentral Government Industrial Tribunal -cum - Labour Cum, Asans as shown in the Annexure in the Industrial Dispute herween the employers in relation to the gement of ECI . sad in workman , which was served by the Cemral Ciovernment on 11-07-2007. !

No.1-22012/485 / 1995. IR ( С - П

AJAY KUMAR GAUR. Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, ASANSOL

PRESENT:

Shri Md. Sarfaraz Khan , PresidingOfficer

Reference Nix. 19 of 1996

PARTIES : The Agent, Bahula Colliery of F.C.T.. Burdwan

Vrs .

The It General Secretary. Colliery Mazılıxı Linion , Ukhra , Burdwan .

REPRESENTATIVES

Sri P. K. Das , Advocate. For the Manageлen :

For the Union (Wurkman ) : Sri M. Mukherjee . Advucile

STATE: WEST BENGAL i INDUSTRY: CUAL

Datod the 25-01 2005

AWARD

in exercise ol powers conferred by clause ( d ) of Sub- section and Sub - section 2 ( A ) of Section 10 of the Industrial Disputes Act . 1947 114 of 1947 ) . Govt . of India . high the Ministry of Labour vide iis letter No. L- 22012 -85/1995- TR ( 11 dated 02-05-1996 has been pleases ! tu scles ine inllowing dispute for adjudication by this Tribunal .

SCHEDULE

"Whether της actice of the management of Halla Colliers under Kenda Area ni Ms. ECI . in dismissing the services of Sh. Sahden Majhi , 1xUG Luser legat and justified " If ret , what relied the concerned workmanisetilked to

5 2. After having received the Order No. L- 230124185/ 995 - IRC-In dated 02-05-96 of the saidteleserie ingin the Govt. of India . Minisu : of 1 abour . New Delhi . Ter adjudication of die dispute , a reference case No. 19 of 1996 was registered on 09-05 96 and accordingly an order to that effect was passed to issue notices to the respective parties through the registered post directing, then in the court on the date fixed and is tile their wollen statements along with the relevan documents and a listad aitnesses in support their claims . In compliance of ine said order notices by the registered post were issped 1 The respective parties. Sri M. Mukber : ee . Advocate fur l'he delinquent workman and Sri P.K. Das . Advocate for the ונות emel appeared and tiled their respective ١١٢١٦٢٢١ n: support of their case.

3. In briet compass the case of the union as feith in the written statementis that Sh. Sahdeo Majhi was a perananend employee of Barula Celliczy under the ٤.٢٠١ The delinquent workman was contpelled s remain: absent from his duty w... 090297 Sent of his illness and Die was undergoing medical trearmear from different doctors nearby his native place ul Giriem Due to his sach. absentecism che managerien has dismissed Shri Szhdo Majhi fimm his service un 27-05-13 .

4. The main case of the union is that no enquiry was ever held before dismissing the said employee or even il held , the workman was a given to detenc himself. Before the enquiry he was not even intimated that the enquiry is going uw be held against him . As such the dismissal order is illegal . arbitrars , whimsical colourable . exercise ofpower and vindatise ol praxiple of natural justice 5. It is also the case of the urnus that belure asuir ! dismissal weder the management did not satppay the cups ul enquiry proceeding . Laquity report and proposed punishment is claimed toes-unitic pliegal und fin to be sei inside in this score alone.

6. The furrber case of the ustion is that by awarding capital pomislimmerit the management has snatched away The lovely- hood and bread of iine wenkban , causing grein hardship to the farmily in these days of seute unemploy inen The quantum of punishment impused is claimed to be to harsh and thsproportionate to the gravity of the misc alleged .Accordingly the union has sought a reliet for setting aside the dismissal order and to reinstate the workman to his service together with all the back wages and the orker financial hemelit with the continuity of the sensiv

? On the other hand the defence case as per the avermenis mace in its watter statement is that the instanl 4847

भारत का राजपत्र अगस्त 4, 2007/ श्रावण 13 , 1929

[ भाग II- खण्ड 3(0) ]

which are admitted by the respective parties. So before entering into the discussion of the merit of the case I would like to mention those facts which are admitted ooc.

reference as referred to the Hon'ble Tribunal is catirely misconceived and the same is not maintainable in law. Besides this there are no valid reason or ground for initiating uny industrial dispute on terms of reference as referredby theappropriate Govt . for adjudication before this Tribunal .

12. It is the admitted fact thust Sh. Sahdeo Majhi , Ел- U.G. Loader was the permanent employce ofBabula Colliery under Kenda area ofMis. Eastern Coalfield Limited.

13. I is also the admitted fact that the delinquent employce was absent from his duty with effect from 03-07-92 to 11-11-92 without any leave or prior permissint and information to the management

14. It is further admitted case of the parties that the workman concerned was chargesheeted on 11-11-92 for bisunauthorized absence from duty w.c.f. 03-07-92 11-11-92 and anEx -parte duroestic enquiry was conducted by the management bolding him guilty for the misconduct of unauthorized absence for the said relevant period in question .

15. It is also admitted fact that there is no charge- sheet against the workman concerned for being habitual absentee. It is the settled principle of law that the facts admitted need notbe proved . Since these all facts are admitted one, so I do not think proper to discuss the sarme indetail .

8. The main defence version of the management is that Sri Sahdeo Majhi, Ex -U.G. Loader, Babula Colliery was absenting from duty since 03-07-92 without prior permission orautorized leave or any satisfactory cause and for which he was chargesheeted for his misconduct . Since the concerned workman was not available in the colliery, the copy of the charge sheet was sent to his home address together with letter of caquiry vide letter No. Agent/BC/ C.6E/68 dated 17-02-93 and the copy of enquiry letter swis also published in the local News Paper datod 25-02-93 published from Asansol but in spite of the publication and sending letter to the bome address the concerned workinan neither appeared before the Enquiry Officer nor seat any watteo intimation stating the reason of his inability to attend the enquiry and as such the enquiry was held ex - parte . The said enquiry officer after holding the enquiry proceeding submitted his findings before the competent authority who subsequently after considering the said enquiry proceedings, its report , chargesheet and other connected papers of the said employee awarded a punishment of dismissal from his service . The copy of the order ১f dismissal was sent to the concerned workman vide letter No. Pers/KND/Termination' ] 79 ] dated 27-05-93.

16. On perusal of the records it transpires that noве of the parties has examined any oral witness in support of their case rather they have filed Xerox copies of some documents . The management has filed the Xerox copy of the chargesbeet , enquiry proceedings along with the reports, notice of enquiry proceeding dated 17-02-93 and one Local News Paper Dainik Lipi ofAsansol .

9. Lastly the contention of the managerment is that the under ofdismissal was rightly passed by the competent authority in accordance with the provisions of Standing Ordens applicable to the establishment . The management densed the contention of the union made in its written sunement claiming them to be totally wrong, haseless and beyondthe scope oftruth. The punishment is also claimed to be not disproportionate rather the same is just, proper, lega , and the union is not entitled to get any relief or reliefs us prayed for .

17. Likewise the union has also filed treatment рарет of Sh . Sahdeo Hansdu issued by Mohulpahari Christian Hospital for the discase of U.T.I. , Prescription dated 28-7-92 granted by the Dr. V.N. Singh . C.A.S. , Palajori, Deoghar, pathological examination report of wine of the concerned workman dated 07-04-93 granted from Altab Hospital Pachambe Gindih and prescriprion issued by Aftab Hospital ,Giridih .

10. From perusal of the record it transpires that on 03-09-98 a hearing on preliminary point was made and the validity and fairness ofthe enquiry proceeding was held m be invalid. It is further clear from the order sheet dated 16-9-98 that the request of the management , an adournment was granted for ftling the affidavit of the wirness and other documents . The order sheets further indicate that right from 27-11-98 to 25-03-03 several adjournments were granted to the management for adducing, evidence but to no effect and ultimately the evidence of the management has closed and the casewas fixed for hearing . The argument enhanced by the parties were heard in detail on 25-01-05 and the award was reserved for order.

11. In view of the pleadings of the parties and the materiuls available on the record I do find certain facts

18. The management in para I of its writen statement has tuken the plea that the instant reference is bad in the eye of law as the same is legally mut maintainable. It is also claimed that in the prevailing facts and circumstances of the case the dispurt is misconceived one. But the aforesaid issue was neither raised nor pressed by the management during the course of hearing of the said reference. The management has neither examined any oral witness oor tendered even a chit of paper in support of ils plea.As such I do not find any defect in the maintainability of the reference and the facts of the case very weil comes under the purview of Industrial Disputes Act . The Govt. of India through the Ministry of Labour has rightly referred the dispute to this Tribunal for its adjudication and as such this issue is decided in favour of the union and against the management

3218 3407-5 4848

THE GAZETTE OF INDIA: AUGUST , 2007 / SRAWANA 13. 1929

19. Adrnittedly the management in order to prove the fact that the chargesheet vide letter No. Agent/BC/PD / C-bE/31/ 92/789 dated 11-11-92 and letter of enquiry vide letter Nu . Agent/BC/C - HE/68 dated 17 02-93 were sent to nike home address of the delinquent workman has filed the Xerox copies of the said documents but in spite of giving several opportunity to the management to produce the peon hoxik or any other proof to show that the charge. sheer was ever served of that notices were served on ot offeredinthe workanan , the management hopelessly failed to contiply or produce the suid relevant documents in support of its contention . Besides this the publication of the enquiryletter in the Local News paper dated 25-02 93 published from Asansol is also not helpful to the management because of the fact that the delinque workman's home addresses of the district of Dumka where this local News paper of Asansol is not expected to be available, As such keeping in view of these all relevanm facts the then Presiding Officer of this Tribunal has roghily held the enquiry proceeding to be unfair and invalid .Apart Irom this fact the management was subsequently given several opportunity to prove the fairness and validity of the enquiry proceeding by examining the witnesses and tendering the concerned relevant documents before the cour, ot ribunal biet the management unerly failed in this regard . It was the bounden duty of the management show and prove before the court of tribunal that the Communicarinn was sent on proper address by registered sust. The immun has categorically denied the changes ovelled against him by Gang his written statement . No porrunity of hearing was given to the workman werned. Date , time and place of enquiry was not int muted to him . Manner in which die enquiry proceeding was condpered was not in conforanity with the principles of naruralijustice. Se charges cannot be said to have been prove in absence of evidence being ied by the manage merit and the order of Jasmussal based on suuls enquiry por cannot be sustained .

30 Now the next main poimi for consideration hefore the sovint to see as to brow far the punishnsem ofdismissal Awarded the delinquent workman by the smanagement is just and Moper and is proportionate to the alleged nature et msconduc

1 Bicard both the parties on the aforesaid point in האספן was submitted by the side of the unico that ot hestit catt ise stid to be a simple case of unauthorized absence only for about four months and the absence l'irom Gury during the relevant period is duly explained and the relsens afabernee supported with medical certificate are suficienterough Trealbient paper ofSh . Sahdeo I farsda issued by Mohulpakuri Christian Hospital prescription granied by V. N. Singh in favour of the weгла concerned , treatment paper issuedby Aftah Hospital , Giziosh and pathological report of Sh. Suhdeo Majhi go to show ' the delinquent workman was suffering from

PART 1 SIC C.T.I. Causingpatial irapotency and Mental weakness as well . I fand much force in the argument ot the union side and Tam convinced to hold that the workman concerned was admittedly basent from his dury during the relevant period under the said compelling circumstances which was heyond his cuatrol .

22. It was further argued that the delinquent workmar. has got unblemish rexerd during his service tenure and since there has not been any complain of any mascoriduct either by unauthorized absence or any other sor : of misconduct . The manageme - n has also not chargesheeted Lim for habitual absenteen זית any chit of paper in this regard has heen filed in the court nor there is any picarding in the written statemem of the mariagerment in this regard. So it can very well be concluded that it is ardınitrexdly the first offence of unauthorized absence fon which nu prior pennission was taker, ne any infuzination could be sent to the authority concerned . But the said reasons have been sufficiently explained and supported by the medics: certificates indicaring the compelling circumstances beyond the control of the delinquent worknige 23. It was also argued out by the side of the union Hakal is a simple case of ani sauthurized absence for a few months under the competang circumstance which canic be said to be a ym misconduct . The anentins of the eniel wils drawn towards the posisjons of Model Standing Order where the exherne punishment prescribed is dismissal as per the gravity of the misconduct and it was claimeıl that the eneme penalty canner he imposed upon the workman in such amor case of alleged misennduct of an unaunborized absence for a few maths The points of argument has got much force al cimivincing as well .

24. 11 has heen several times observed by the differer.t Hon'ble High Courts and the Apex Court as wel that before imposing purishment of dismissal it is necessary for the disnglinary authority to consider the socie- есплоmіc background of the workman , Iris fanmaaly background . length of service plin by the employee. kis pase record anul the surrounding circumstance including the nature ofthe misconduct and lastly the compell circumstance to commir esconduct . These are the relevam factors which mest hart to be kept in mind by the authority at the rinse of irnposing the punishment which is nas done by the management in this case .

25. Admittedly the workman teavermed is an illiterate main of Majh : by caste who is the member of Scheduled Tribes and semerberul the weaker section of the ciely He is fissaricially weak and poor whe has suffered a lot tor more than ten years . The amentions the cour , was drawn owards the pr טננ the Mode: Standang Order land (down under Garse 27 ( 11 page : 5 ; where various minai punishment have been prescribed to be awarded according to the gravity of the musconduct . I fail to think as to why unly maximum punishermend available under the said clause should he awarded in the present facis and circumstace of [ भाग II-खण्ड 3 ( i) )

the case. It has been observed by the Apex court that justice must be tempered with mercy and that the delinquent workman should be given an opportunity to reform himself and to he loyal and disciplinary employee of the management. Besides this it is also clear from the recned uned the argument of the union that secund show cause rentice was ever issued to the concerned workman before passing the order of punishment of dismissal which is of course direct violation of the mandate ofthe lion'ble Apex C'ourt this respect. However, I am of the considered view at the punishment of dismissal for an unauthorized absence for about four months under the compelling circumstance and without any melafide intention is not just and proper rather it is too harsh a punishment which is totally disproportionate to the alleged misconduct . Such a simple case should have been deals with leniently by the management . In this view of the mager I think itjust and proper so modify and substitute the same exercising the power under Section Al of the Industrial Disputes Act , 1947 1 meet the ends ofjustice and as such the impugned Order of clismissal of the concerned workman is hereby set aside and he is directed to be reinstated with the continuity of the service and in the light of the prevailing facts. circumstance and the misconduct for which the punishment of dismissal was imposed on the workman concerned I think it appropriate that the delinqueol employee be imposed a punishment of stoppage of two Increments without any cumulative effect . It is further directed that the workman will be entitled to get only 50% a' the back wages which will serve the ends of justice . Accordingly it is hereby.

ORDERED

That lerim "Award"be and the same is passed in favour of the workman concerned . Send the copies of the award to the Ministry of Labour, Govt. of India , NewDelhi infine and needful . The reference is accordingly disposed ul .

का, आ, MD. SARFARAZ KHAN . Presiding Officer नई दिल्ली , 11 जुलाई , 2007 2142.--औद्योगिक विवाद अधिनियम, 1947 ( 947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार हूं. सी. एन्ना के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरग , असनसोल के पंचाट ( संदर्भ संख्या 1/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 11-07-2007 को प्राप्त हुआ था ।

सं. एल-22012/ 135/2003 - आई मार ( सीएम -1] ) ) अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 13th July, 2007 5.0 . 2142.-In pursuance of Section 17 of the [ ndustrial Disputes Act . 1947 ( 14 of 1947 ) . the Central Cikivertiment hereby publishes the award (Rel . No. 1/2004)

4849,

भारत का राजपत्र अगस्त 4. 2007/13 , 1929

of the Central Government Industrial Tribunal-comm - Labour Court , Asansol , as shown in the Annexure in the Industrial Dispute between the management of Shyam Sunderpur Colliety ofECL and their workman . receiverd by the Central Govermumenton 11-07-2007.

No. L-22012/ 135/2003 - IR (CM- IT) ] AJAY KUMAR GAUR, Desk Officer

ANNEXURE.

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, ASANSOR.

PRESENT

Sari Md. Sarfaraz Khan, Presiding Officer ReferenceNo. I of2004

PARTIES : The Agent Shyam Sunderpur Colliery of The Jl. General Secretary. Ukhra Colliery Mazdoor Union , INTUIC Cinema Riad, Ukhra, Burdwan .

REPRESENTATIVEN

Sr. P. K. Das . Advocate .

Hor the Management:

For the union (Workman ) :

INDUSTRY : COAL .

Sri M. Mukherjee, Advocate STATE : WEST BENGAJ . Datedthe 26-06 2007.

AWARD

In exercise of powers conferred by clause (d') of Sub- section il and Sub - section 2( A ) of Section 10 of the IndustrialDisputes Act, 1947 ( 14 of 1947), Govt . of India , through the Ministry of Labour vide its louer No. 1. 22017 135/2003 - IK ( CM- 11) dated 23:12 2005 luas been pleased to refer the following dispute for aljudication hy this Tr

SCHEDULE

"Whether the action of the managemem of Shyamsundarpur Colliery under Bankola Area of M/s. Eastern Coal fields Ltd. In dismissing Sci D. P. Patra , PitClerk from service is legal andjustified? If al, au what relief is workman entitled ?"

On having received the Order No. L-22012/135/2013- TR(CM dated 23-12-2003 from the Govt . India , Mimisay of Labour . New Delhi , for adjudication of the dispue , a reference caseNo. 1 of 2004 was registered on 06-01-2004 and accordingly an order to that effect was passed to issued notices to the respective parties through the registered post directing them to appear in the court on the dare fixed and to file their written statements along with the relevant documents and a list of witnesses in support of their claims . In pursuance of said order notices by the registered post [PART I-SEC. ( ii) ) 4850

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13 , 1929

Lod, and their workman , received by the Central Government 11-07-2007.

No. L-20013/2/2007- IR (CI) ] SNEH LATA JAWAS, Desk Officer were sent to the parties concerned. Sri P. K. Das , Advocate and Sri M. Mukherjee , Advocate appeared in the Court along with a letter of authority to represent the Management and the Union respectively and union filed its wrillen statement in support of its respective claims .

ANNEXIURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNALNO. 1, MUMBAI PRESENT

Justice Ghanshyam Dass , Presiding Officer Complaint No. NTB- 2 of 2004

(Arising out ofRef. No. NTB- 1 of 1990)

PARTIES: Capt . Vikrant Sansare Complainant

V's.

Air India Ltd.

:Opp. Party

APPEARANCE

From the perusal of the record it transpires that the record was fixed for filing the written statement by the side of theManagement . It is further clear from the record that petition has been filed on behalf of the workman concerned stating therein that the workman concerned has been suffering from various aliments and due to shortage of money he is not in a position to get himself treated properly as the P.F. Account, gratuities etc. has not been disbursed of by the management on the plea of pendency of the instant reference. la is further stated that the workman concemed is not willing to proceed further with this case so he wants to withdraw his case so that his terminal benefit may be disbursed by the managemem.

Ahsent

For the Complainant

: Shri N. S. Lal , Advocate

For the Opp. Party

STATE: Maharashtra

Mumbai , dated the 28th day of June, 2007.

AWARD

In view of the above facts and circumstance of the workman concerned is allowed to withdraw his case and the managerment is directed to disburse his P.F. account, grantuity and other dues if any at the earliest so that the workman concerned can meet all the necessary expenditure regarding bit treatment . And such it is hereby

ORDERED

1. Captain Vikrant Sansare, Senior Captain , Air India Lad, General Secretary, Indian Pilots guild has moved the instant application under section 33 (A) of the Industrial Disputes Act for the following reliefs.

(A) To quash and set aside the impugned order/ direction of theOpposite party dated 3-8-2004, threatening the complainant with dismissal .

that let a" NoDispute Awarded" be and the same is passed. Send the copies of the award to the Government of India Maoistry of Labour,New Delhi for information and needful . The reference is acoordingly disposed off in the Light of the prayer of the workmam poncerned.

MD. SARFARAZ KHAN , Presiding Officer

(B) Peading the hearing and final disposal restrain the Opposite Party by an injunction from carrying out his threat of dismissing the Complainant or taking any other action against bim

नई दिल्ली, 17 जुलाई , 2007

का.आ. 2143.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की कारा 17 के अनुसरण में, केन्द्रीय सरकार एयर इंडिया लि. के प्रबंधतीन के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निविष्ट औद्योगिक विवाद में राष्ट्रीय औद्योगिक अधिकरण , श्रम न्यायालय मुम्बई के पंचाट ( संदर्भ संख्या Camp . No.NTB - 2 of2004/ Arising out of Ref . No. 1/90 ) को प्रकाशित करती है, नो केन्द्रीय सरांकार को 11-07-2007 को प्राप्त हुआ था ।

[ सं. एल-20013/2/2007 - आई. आार. ( सी-1 ) ] स्नेह लता जवास , डेस्क अधिकारी

New Dellhi , the 17th July, 2007

2. The marler remained pending for hearing for the last about 3 years . The order sheet goes to show that the complainant absented himself since the filing of the complaint . The notice was issued by the Office of the Tribunal and in pursuance there to . Mr. C. J. Joneson , Adv . appeared for the Complainant on 15-5-2007 . The mater was adjourned on his request to 06-6-2007 . None appeared for the complainant on 6 6 2007. The matter was posted for exparte hearing on 28-6-2007 i.e. today . None appeared for the Complainant today also. The Counsel for the Mnanagement Shri . N. S. Lal . Adv . for the Managersenal is present.

3. After going through the record . I find that the Complainant does not appear to be interested in prosecuring hus complaint. In do not find any evidence worth the name to grant the relief prayed for hy the Complaint .

S.O. 2143.--In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref . No. Comp . No.NTB- 2/2004/Arising Ref. No.NTB 1/90) of the Nationall Industrial Tribunal- cum - Labour Court , Mumbai , now as shown in the Annexure in the Industrial Dispute between the employers in relacion co the management of Air India

4. The complaint is accordingly dismissed. JUSTICE GHANSHYAM DASS , Presiding Officer [ भाग II- अच्छा 3( ii ) ]

4851

भारत का राजपत्र अगस्त 4, 2007/ 13 , 1929

AWARD

नई दिल्ली, 17 जुलाई, 2007

TheGovernment of India in the Ministry ofLabour, inexercise ofPowas conferred by Climme ( d) ofsub-section (1) and sub- section 2 (A) of Section 10 of the Industrial DisputeAct, 1947 ( 14 of 1947) have referred the following dispute for adjudication vide their Onder No. L- 22012/264/ 93-5R(C-IT), dated 30-4-1997 :

कर. भा. 2144. औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सी.एम. पी. डी. आई आर. आई. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के नीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकारण , मुवनेश्वर के पंचाट ( संदर्भ संख्या 120/2001 ) को अकाशित करती है , जो केन्द्रीय सरकार को 17-7-2007 को प्राप्त हुआ था ।

[सं एल-22012/264/1993 - आईआर ( सो-0 ) ] अजय कुमार गौड़, डेस्क अधिकारी

New Delhi , the 17th July, 2007

"Whether the action of the Mmaganent ofCentral Mines Planning & Design Institute Limited (CMPDIL) in not regularizing the services of Shri Gokul Chandei, Ganesh Chandra Naik, Ригла Chandra Ghadei and Madhab Naik, casual workmen is legal and justified? If not, to what relief are the workanen entitled and from which date?"

2. The shortly stated case of the Union as narraked in the StasemearofClaim is as follows :-

8.0. 2144-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the award (Ref . No. 120/2001 ) of the Central Goverment Industrial Tribunal- cum - Labour Court , Bhubaneswar, as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of CMPDIR! and their workman, which was received by the Central Government on 17-7-2007,

[No.L- 22012/264/1993- IR(C- II)) AJAY KUMAR GAUR, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, BHUBANESWAR

PRESENT:

Shri N. K. R. Mohapatra, Presiding Officer, C.G.LT. Labour Court, Bhubaneswar.

Tr. Industrial Dispute Case No. 128/2001 Date ofPassing Award-26th June,2007

BETWEEN

The Management of the Regional Director, CMPDIRI . VI, 4th & 7th Floor , Gruba Nirman Bhawan, Sachivalaya Marg, Bhubaneswar .

istParty-Management

And

TheManagement ofC.M.P.D. - RI- VII, (hereinafter called as Management ) come into being at Blrabaneswar inAugust 1987 as a subsidiary company of the Coal India Lad to act as an in house consultant to the department of Coal . Initially the said Management started functioning in aprivate rented building and thereafter it shifted in 1988 to 4th, 5th, 6th and 7th Floor of a building of Orissa State Housing Board on lease basis. The total carpet area of these floorsbeing about 20,000 Sq. ft. it engaged the disputants as Sweepers and after the sweeping work in Dver utilized their services in other minial works giving them an assurance that they would be regularized in due course of time.As they were paid considerably low wages Imuchbelow the salary ofa regular swooper , these workmen made several representations in their individual capacity as also through the Union in question demanding regularization of their services . About four years after their engagement the Management having succumbed to the demand of the Union issued a letter on 31-3-1992 appointing these workmen as casual sweepers for a period of90days only with effect from 1-4-1992 on a consolidated wage of Rs. 75/- per day and thereafter having terminated them on expiry of the term again engaged them as hefore paying a paltry amount . As the work performed by these worden was perennial in nature and they were being continuously engaged without regularization ever since the establishment of the Management, the Union raised am Industrial Dispute . The Government of lodia initially did not like to refer the matter to the Tribunal , but pursuant to direction ofthe Hon'bleHighCourt in O.J.C. 761/94 it subsequently refined the matter. Hence this reference .

Their Workmen, represented through the Branch Secretary &C.C. Member ,NODEA, CALL CMPDIRIVIL Gruba Nimman Bhavan, Sacrivalaya Marg, Bhubaneswar .

...2ndParty-Union.

APPEARANCES

For the 1st Party-

M/s. Somadarsan Mohanty, Advocate.

Management.

: For the 2nd Party-

Mrs.R.K.Bose, Advocate

3. The Managerment on the other hand has avermed that office sweeping work being of 2 to 3 hours job, one Gokul Ghadei (one of the disputant workman ) was engaged as a part time sweeper when the office-establishment of the Management first came into being in 1987. The said Gokul Ghadei for his own purpose engaged three others (Therming the other disputants ) for timely cleaning of the 4852

PART SFC.3( ii ) ] THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13. 1929

voucher, judgement of the Hon'ble High Court in O.J.C. 761/94 etc.

8. The Management has also produced equal num- ber of documents marked us ExL - A to Wand AA 10 HH und X and XII . These documents include correspondence with the higher authorities , representation of the dispu- lants, copy of the office notes, appoinement lenters issued to three of the workmen for a period of 90 days , joining report of these disputants , Attenkiance register, vouchers granted by workman Gokul , quotation given by Mis .Gokul Chadet & Brothers etc.

office Moor . After the office was shifted to 4th to 7th Floor of a building ofState Housing Board (present building) in 1998 the self same Gokul was asked to sweep the floor on part time basis with his workers . While this practice was going on Gokul Ghades and two of his associates namely Purna Ghadei and Madhah Naik were appointed as casual sweeper for 90 days with effect from 1-4-1992 on condition that they would be terminated on completion of the said term unless extended further . As in the meantime the Coal India limited, the apex body , imposed restriction on appointment of regular and temporary / casual employees . further extension to these workers could not be given after expiry of90 days . However the work of sweeping was again given on contricrual basis to a self styled farm Mis . Gokul & Brothers run by the disputants . When the management issued a short tender notice calling upon interested bidders in cake up the sweeping and upkeep work on contract basis, these disputants preferred J.C. 961/94 challenging the tender notice . The Hon'ble Coun in their order dated 9-8- 96 directed further continuance of these disputants until the disposal of the reference and as such they are continuing till date . in the above back ground it is contended hy the Management that the above engagement of the disputagtbeing partially part - time, partially casual and then contractual and then High Court order oriented they are not entitled to claim regularization , their casual appointment filom 1-4-1992 onwards and prior to that out having been made in accordance with the recruitment procedure.

4.On the basis of above pleadings of the parties the following three issues were frammed .

INSUES

1. Whether the Industrial Dispute is snaintainable?

2 Whether the workinen are entitled to any order of regularizatwn?

3. To what other relief. ifany ?

5. The Union has examined its Branch Secretary as its sole witness while the Management has examined two of its officers.Both parties have also filed a good number ofdocuments in support of their respective stands .

ISSUE NO. 1

6. This issue is answered affirmatively there being ne substantial challenge to the same by either party.

ISSUE NO. 2 & 3

? These issues being inter - related are taken up

9. 11 may be stated of the very outset that except the oral evidence of W.W.I no document has been filed by the Union as to under what conditions these disputants were tirst engaged when the establishment of the Management came into being admittedly for the first time in 1987. Εττυπι ι letter of the Management (Ext. - 1 addressed to its higher authority it appears tho ? disputant Gokul Ghadei was alone engaged first on part time basis as he was found working un self same basis in another neighbouring establishmen of one S.E.C.L. and on nsamage is entire works the said Gokul in turn had engaged the other diree dispulants to sweep the office floors of the Manageanent. Later when the office of the Management was shifted to the present build ing the Management diverred one such wurker tu attend their rest house situated in a diffcient place asking, Gokul Chades alone to sweep the floors of the 4th to 7th Floor of the office buildingto which it was shified . The said Gokul used to clean the floor along with two other persons namely Puma Chandra Cihadei and Madhab Naik ( other two dispu- cants) nu a fixed sun settled on bargain . The said Gokul used to take his dues at the end of the month ough vouchers. The documents produced by the parties show chat Shri Gokul used to receive his fees @ Rs . IS per day per personwhen the minimum wage fixed by the StateGovt. was something more than that suggesting that the work- manGukul was simply given a part time job oftwo to three hours for cleaning the floors alone . In his evidence the Branch Secretary of the Union (W.WID has chumed that all these four workmen of whom three were engaged in the office building and another in the rest house , were working from 6 A.M. to 2 P.M. daily as they were engaged in ather duties after the swoeping work was over .Rut to subsrami ate the same nu documents worth the name has been produced norany of the disputants have been examined to chenw sufficient light how they were kept engaged from 6 A.M. tо 2 Р.М. Оn be nther harul the office notes marked as Ext. - B shows that time and again the sweeping charges payable to Gokul was enhanced on his own repre senration and it were received by Gokul hiroselt on behalf of his self styled firin M's Gokul & Bruthers . This he used tu receive untal himself and disputant Puma and Madhub were given appointments as casical sweepers for 90 days (τυπι 3-4-1992 vide Ext.-F. Gani H suggesting them their previous engagement was on part time basis as claimed by the Management .

The Clipn has produced as many as 37 documents marked as Ext - 1 to 37. These includes corresponences . office orders..memorandum of settlements , short - tender notice issued ! by the Management , copy of payment [ भाग -खण्ड 3( ii) ]

4853

भारत का राजपत्र अगस्त 4 , 2007/ श्रवण 13 , 1929

sweeping was entrusted to the disputant, Gokul Ghadei alone but he used to take the assistance of other disputants to clean the office finors when he was contacted first in 1987. The evidence of the Management Witness further indicates that these persons by devoting two to three hour daily use to sweep the office building in question before the office hour and for this Gokul Chadei used to receive the entire dues in the name of Gokul & Brothers. Therefore in these premises the work doneby thete disputants camot be considered as one of perma- Dent as well as perennial in nature so as to attract the provisions of the National Coal WageAgreement. IV.

10. It is contended by the Union Witness ( W.W.- 1 ) that as per Clause 115 of the National Coal Wage Agree- ment - IV (Ext -27 ) no employer is permitted to engage contractors on Jobs of permanent and perennial in nature . Sweepingbusiness being a work of above nature the past engagement of workanan prior to their 90 days appoint- ment as casual workers is to be taken into account while considering their case for regularization . In this regard in may be pointed out that no doubt under the above agree- ment the Management is prevented from engaging contractors or labourers throughs contractors on job of permanent and perennial nature. But such restrictions of nut engaging contractors are only applicable to those type of work which needs to be attended continuously in a cyclic manner round the clock. The work of sweeping may be permanent but it cannot be said perennial unless it is shown that such sweeping activities are needed through - Out the entire working hours . In other words a distinction can be drawn between the duty of a Sweeper engaged in a mining area and the duty performed by a sweeper in an office building . In the former case sweeping business тау beboth perennial and permanent but in the latter case the sweeping of office floor can only be considered as periha- nent but not both permanent and peremial .

12. It is on record (Ext-2 ) that while the workanen were working in the above manner, the Union raised a demand in its lenter dated 10.1.1992 for regularization of these disputants , Over this issue the Dy . Chief Manager stationed an Ranchi called for reports from the Manage- ment and in a later stage three of the disputants namely Gokul Ghadei, Puma Chandra Chadei and Madhab Naik were given temporary appointment for 90 days with effect from 1.4.1992 on condition that their engagement was terminable on expiry of such period unless extended further. The documentary evidence produced by both parties shows that after termination of these disputant on expiry of the above term , the Union came up heavily demanding their regularization , which resulted in various meetings between the Management and the Union but to no effect. In the meantime the Management also asked for leave ofhigher authority to give them further engagement and at the same time invited applications through EmploymentExchange for filling up two posts that were sanctioned later . But in view of the recruitment restrictions imposed by the Coal India Ltd. these posts could notbe filled up. The record indicates that after the above termination in July 1992 workman Gokul having agreedto work as before gave a proposal on behalfofMis .Gokul & Brothers to work on an agreed rate ofRs . 80 per day each (three persons) vide Ext. -9 dated 1-8-1992 and took up the work. While this being the position the Management ou 8-5-1996 issued a short tender notice calling interested hidders to take up general up- keep work on contract basis. In the meanwhile the Central Govertament did not like to refer to the Tribunal the dispute which the Union had raised before the Labour Enforcing Authority. This order having been challenged in OJ.C. 761/94 the Hon'ble Coum in their order dated 9.8.96 directed the Central Government to refer the matter to Tribunal . At the same time it directed the Management not to take any step to disengage all the four disputants until the reference is answered.

11. In the instance case there is evidence on recurd thatbesideshaving its office located in a rented mubtistoried building the Management had taken another house on rent in another place to provide accommodation to those ofthe junior officers who did not intend to hire separate houses. Except these two building it had no other residential quar tets or other places requiring sweeping and cleaning in a permanent and perennial basis. From a letter of the Management (Ext. 1 ) which has been marked from theside of the Union it appears that of the four disputants one WES asked to attend the building meant for Junior Officer's accommodation while the remaining three were sweeping the office building in question being engaged by workman Gokul .As normally sweeping work is to be completedbe- fore office hours , it squarely suggests that the disputants could not have been engaged for eight hours a day. Since the concerned workman have not come forward to depose before the Court and as their witness (W.W. - 1 ) has failed to account for as to what other work besides sweeping was entrusted to these disputants to keep them engaged up till 2.00 P.M everyday , it can safely be concluded thay these disputants were engaged on part- time basis as claimed by the Management prior to their appointment as casual sweepers with effect from 1.4.1992 . This has gained support from the narration of Ex1. - 1 which indicates that while these disputants were working on part time basis in a nearby establishment they were contacted and engaged alike- wise when the establishment of the Management came first into being in 1987. The evidence of the Management witoess read with the narration of Ext .- 1 and other documents make it further clear that the part - time job of

13. From the above it is thus clear that while the thoce workmen Gokul , Puma and Madhab were working as sweepers of the office building on part time basis they were appointed as casual sweepers for 90 days on Stipulation that their engagement would be kaminable on expiry of90days unless it is extended. It is bere argued by the 48,54

THE GAZETTE OF INDIA: AUGUST 4, 2007/ SRAVANA 13 , 1929

[ PART II-Sec. 3 ( 1 ) ]

makes theworkmen (three in number ) entitled to claim regu- Jarization as per the Standing Order of the Management .

Union that under the Standing Order casual engagement for 90 or more than 90 days entails a person to claim regularización, On the other hand it was argued by the Management that these persons having not been recruited selected as per the recruitment process of the company and their 90 days engagement , being as casual worker, they have got no right to clain regularization as per the mandate of the Apex Court given in several rulings . It was further contcoded that it is outside the purview of theCourt/ Tribunal to pass an order for regularization of any particu- Lurworkers.

15. It was argued by the Management that the 90 days contractual engagement of the above disputaοις ήος being in accordance with the recruitment procedure they were not entitled for regularization. Be it noted here that when the Management has allowed these workers to continue as casual employees , for whatever reasons it roay be, beyond the contractual period of90 days , they cannot be denied regularization in violation of the Standing Order . The Tribunal no doubt is capsized with its power to direct regularization but a direction to the Management to Jegularize the disputants namely Gokul , Puna and Madhab would notbebad in the face of a statutory protective clause given under the Standing Order . But in so far as the case of the 4th disputant Shri Ganesh Ch . Naik is concerned except a thin line of evidence of the Union that he was alsu worting continuously like other three , there is not a scrap of paper to show that like the other three he was also given a contractual appointment as casual workers for period of 90 days,and above . Therefore in these circumstances hedeclared not entitle for any relief.

16. Thus to sum up , the Management is directed to regularize the services of the workman Gokul , Purma and Madhab in accordance with its Standing Order within six months from the date of receipt of the order and subject to the reservation norms . They would ofcourse not be entitled for any back wages and other benefits except continuity of service from 1-4-1992.

17. Accordingly the reference is answered.

N.K.R. MOHAPATRA , Presiding Officer

List of witnesses examined on behalf of the workanan

Workman Wirness No. 1- Sbri Bijaya Bihari Padhi .

List of witnesses examined on behalf of the Management

Management Witness No.1 Mohammed Yusuf Anwar . Management Witness No.2- Birendra Prasad Singh 14. las no doubt true that a casual employee or daily wagers not elected as per the recruitment rule has got no tight to clamp regularization. It is equally true that the hands of the Tribunal are tight to pass any order directing reди. Larization oflany such workers . But if the Standing Order of an industry contains a provision for regulerization of such workers , in my opinion, the same would prevail all over . TheStandingOrder of the Management & portion of which has been marked as Ext. -26 shows the classification of different workers .According to it a casual workman means a workman who has been engaged for work which is intermittentior sporadic or of casual nature not extending beyond a maximum period of three months at a time he evidence of the Management Witness shows that the above named three disputants were appointed as casuالف worker for alperiod of 90 days with effect from 1.4.1992 and they were terminated on 30th July, 1992. This shows that theywere notterminated after 90 days but were allowed continue beyond 90 days . The full text of the Standing Orderhas of course not been filled by either party so as to enable the Court to examine the real status of casual weaker. But the letter of the Central Mine Planning & Design Institute Limited (Fixt .-W) indicates that persons engaged as casual workers for more than 90 days acquire a right to claito regularization . It is on record that even while the three workanen were working as capsal employees the Management had moved its higher authority for further extension of the term of these three workmen beyond 90 days. It is also on record that after sanction of some perma- nent posts of sweeper an advertisement was made asking the Local Employment Authority to sponsor the name of suitable candidates and at the same time these three dispu- tants were asked to get their names sponsored through employment exchange. The said recruitment examination could not of course be held due to recruitment ban imposed by theCoal India Authority. But none the less the other correspondence of the Management shows that it was equally interested to provide regular services to these three workinen . The most vital and disquietiog aspect of the case asjappearing from the evidence is that though these three workmen were given appointment as casual employees for a period of 90 days with effect from 1.4.1992. they have been terminated in the mouth of July 1992 i.e. much after 90 days without further extension . This itself

List ofexhibits on behalf of the 2nd party- workman Ext. - 1- Copy ofletter dated 21-1-92. Ext-2- Copy of letter dated 27 /28-1-92. Ext-3 - Copy of letter dated 14-2-92. Ext. -4-Copyof letter dated 1-7-92. Ext.-5 - Copy of note dated 21-7-92. Ext.-6 - Copy of letter duted 19-8-92. Ext. -7- Copy of lener dated 26-8-92.

[ भाग II-खष्ठ 3 (ⅱ) ]

Ext.-8-Copy of letter dased 20-11-92 (Two Sheets) ExL-9-Copy of letter dated 29-8-92.

Ext-10- Copy ofbill dated 12-11-98.

Ext . - 11 -Copy ofbili dated 9-12-98.

ExL- 12 - Latur dated 21-9-92.

Fxt-13. - Copy ofTransfer Certificate dated25-10-88.

Ext- 14 - Copy of Caste Certificare issued in Misc. Case No.406/82 .

xt- 15 - Copy ofTransfer Certificate dated 18-4-91.

Ext- 16 - Copy of Caste Certificate issued in Misc. Case No. 119791.

Ext .-17- Copy ofTransfer Certificate dated 11-11 - RR.

Ext-18 - Copy ofCaste Certificate in Misc . Case No. 1186/ 89.

Fxt.-19 Copy of the letter No. 7467 dated 19/24-2-93 regarding regularization of Shri G.C. Nayak and Cothers .

Eat -20 - Copy of the letter dated 14-8-92 regarding sanction for engagement of casual sweepers.

Ext.-21- Copy of the certified letter dated 27-8-92 regarding engagement of sweepers.

Ext.-22- Copy of the charter of demands dated 17.8.92 .

Ext.-23- Copyof the letter dated 16.12.92 of the Association for discussion on the Issues .

Ext.-24 Copy of the minutes of the meeting held on 9-2-93.

EXL-25 Copy of the minutes of the meeting held on 30-7-93.

Fxr . 26 - Copy of the Standing Order (6 sheets) .

Lixt. -27 Copy of the memorandum of agreement dated 27-7-89 (5 pages) .

Ext. -28 . Copy of the letter dated 10-12-92 sent to theAsst. Labour Commissioner.

Fixt. 29. Copy ofnotice dated 22-12-92 asking, for furnishing comments in the dispute.

Ext.-30 -Copy of comments furnished in the dispute.

Ext. -31 Copy of minutes of discussion held on 11-2-93.

Ex: -32-Copy of Memorandum of Seulement dated 216-91.

Exa. -33 -Copy of Short Tender Notice dated 8-5-96.

Exi.-34.- Copies ofVouchers (4 sheets).

Ext-35 -Copy of the neiler dated 30-3-99 passed by the Industrial Court, Nagpur.

32187-8

4855

भारत का राजपत्र अगस्त 4, 2007 / वण 13, 1929

Ext.-36- Copy of the notification dated 9-12-76.

Ext-37-Copy of the onder dated 9.8.96 in OJ.C. No. 761/94 ( 11 sheets).

List of Exhibits sa Belalf of the 1st Party Management :

Ext-A- Copy of letter dated 10-1-90 .

Fxt, -В - Сору оfnote dated 10-1-90.

Ext. -C-Copyofnote dated 11-1-9 ] .

Ext. -D-Copy ofnote dated21-3-92

ExL-E-Copy of letter dated 30-3-92.

Ext-F- Copy of letter dared 31-3-92.

Fxt-G-Copy ofletter dated 31-3-92.

ExL-H-Copy of letter dated 31-3-92.

Ext-J- Joining report -dated 1-4-92.

Ext -JM - Caste Certificate dated 29-12-92.

Fixt-1/2-Identity Card dated 26-4-91.

ExL-K- Joining Report dated 1-4.92.

Ext -KM- Caste Certificate dated 12-9-91.

ExL-K/2- Identity Card.

ExL-J.-JoiningReport.

FXL - LA - Castle Certificate dated 29-12-88

Ext-M- Copy of extract of attendance register .

Ext .-N - Copy of tote dated 1-7-92.

Ext-O- Copy of letter dated July 1992.

Ext. -P- Copyof letter dated 31-7-92

Ext.-Q- Copy of lenter dated 1-8-92.

Fixr.-- Copy of letter dated 5 8 92.

Ext. -S - Copy of letter dated 28-8-92.

Ext.-T- Copy of quotation dated 29-8-92.

Ext.-U- Copy of note sheet dated2-9-92.

Ext. -V- Copy of letter dated 7-9-92.

Ext.-W - Copy of letter dated 16-9-92.

Ext. -AA- Copy ofnote sheet dated 24-9-92.

Ext. -BB-Cupy of letter dated 29-10-92.

Ext-CC - Copy of note sheet dated 23-11-92.

Ext.DD. Copy ofletter dated 24-11-92.

Ext -FE-Copy of letter dated 14-12-92.

Ext.-FF- Copy of bill dated 1-3-93.

Ext.-OG -Copy of letter daccet 31-3-93.

Ext .-HH -Copy ofbill dated 2-3-94.

"X"-Copy of Letter No. 793 , dated 5-12-20012, 16/ 18-7-95 of CMPDI ( Sr. PO)

"X/T"-Copy of reply dated 25-7-98 of Gogul Ghadei to Sr. PO , CMFDI.

4856

PART 11-Sex. 3 ( i ) |

THE GAZETTE OF INDIA : AUGUST 4, 2007/ SRAVANA 13,1929

नई दिल्ली , 17 जुलाई , 2007

का.आ. 2145.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारः 17 के अनुसरण में , केन्द्रीय सरकार तारापुर एटांधिक पत्रिर स्टेशन के प्रबंधतंत्र के संबद्ध नियोव्स्कों और उनके कर्मकारों के नीचे, अनुबंध में निर्दिष्ट औद्योगिक विष्ाद में केन्द्रीय सरकार औद्योगिक अधिकरण नं. - 2 , मुम्बई के पंचाट ( संदर्भ संख्या CGIT-2/37 of 2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार कां 17-7-2007 को प्राप्त हुआ था।

[सं. एल 42012/292/21003 आई आर ( मीएम-11 ) ] अजय कुमार गौड़, डेस्क अधिकारी

New Delha , the 17th July ,2007

$ .0 . 2145.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref . No. CGIT 2/37 of 30041 of de Central Govemmeal Industrial Tubunal com-Labour Court . No. 2 , Murobat as shown in the Annexure in the Industrial Dispute between the mamgementol Tirapur Atwornic Power Station, and their wisko: en, reveived by the Central Government on 17-7-3007.

No. L-42012/292/2003- IR ( CM -I ) ]

AJAY KUMAR GAUR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NULL, MUMBAI :

PRESENT: A.A. lad, Presiding Officer

Reference io.CGIT - 2/3702004

Floyers in relution to the Managerment of Taraрниг Atomic Power Station

Ceneral Manager P & IR)

apur Atomi . Fower Station

PC Topp Distt . Lane

Thane-40 : 51 .

ANTI

Shri Rajenders R. More

1. Poptarer TODhanai Te ukaT'apor

APPEARANCES

Forthe Employ

M/s.Rajesh Kothari & Cu . Advocates

For the Workman

: Mr V. J Amberkar Advncare

Mumbai , dated 15th June, 2007

AWARD

The Government of India , Ministry of Labour, by its order No. 1. -42012/ 292/20/ R/AR2012/ 292/ 20/ R/AR ( CM- 11daled 18-8-2004j exercise of the powers conferred by clause ( d) of sub- section ( 1 ) and sub - section 2 ( A ) of Section 10 of the Industrial Dispute Act, 1947 have referred the following, dispute to this Tribunal for adjudication:

"Whether the action of the management of Taгариг Atomic Power Station , District Thane in dismissing the services of Mr. Rajendra R. More, Helper with effect from 8-6-1996 is legal and justified? If not. 10 what relief the workman is entitled?"

2. Claim Statement is filed at Ex - 8 by workman scaring that he was employed by first party as a Helper since 1991 as per the letter issued . Said einpkıyınent was with party upto 44-91 . Thereafter he was regularised in the employment as per demand of the Union as a daily rated employee from $ 4-1991 till 691 .

3.On 14-8-95 he was given pay scale of Rs . 750-12 870 14940 Thereafter he was terroinated on 8-3-96 giving effect from 8-6-96 without any notice und any reason . By letter dated 20-1-2003 he questioned the said action and requested to regularise him in the employment.

4. The states thal , he wins arrested by Police on Jalse diplained given by one lindy Actually he was not concerned with that lady who leveled false charge of misconduer against him . Only because second party arrested and charge sheetedby police and without hoiding enquiry and without giving opportunity to explain upon the said . he was termaurated though he was acquitted from the said complaint by the Session Judge . Palghar . Se he prayed that . action taken by first party dated 8-3-96 be quashed and set aside with direction in first party to reinsrate hint in the employment with continuity of service.

$This isobjected by first party by filling reply at 11 slating that , he was appointed on probation un 8-3-96 and during the probation period he was terminated . He kept silent for about six years and prayed for reinstatement though he got acquitted from the Session Court regarding criminal case pending, initially he was taken as a casual worker and worked from 1983 to 1994 lor number of day's as mentioned is para of Written Statement. Then he was selected and appointed on probatior . During the probation: his work found unsatisfactory so he was terminated . Moreover termination dated 8-6-96 was challenged by harm. in 2002 by application willt ALC ( C ). Nu explanation was given as to why he was late in approaching Conciliation Officer. Sa on all these enunts , claim made by second party deserve to te reject .

[ भाग खष्ठ 3 ( ii ) ]

6. In view of above pleadings issues were framedat Ex-16 which are answered as follows:

ISSUES

FINDINGS

No.

1. Is termination justifiable?

2. Is he entitled for reinstatement? Yes , but without hackwages.

3. What Order?

As per order below.

REASONS

Issue no , ]

7.Termination dated 8-6-96 is challenged by secund pany alleging that , without following duc process of law and without hearing him by giving change sheet and by bolding enquiry , be was terminated said decision of the first party is illegal , Whereas case of the first party is that, since he was appointed on probation and his work found unsatisfactory he was terminated in probation period for which enquiry does not require or any explanation from the workman

8. First party place reliance on the citation published in 2003 (1 ) SCC page 263 where it is observed that , if employee terminated during probation period, on unsatisfactory performance, does not attract any stigma Here this case is on the point of stigma on the employmen of the concerned workman but here second party who is involved in the reference was terminated. As per Industrial DispulesAct it is not justifiable and it is not even observed in that angle in the said observations . Same view is taken in the citurion published in SCC ( 1) 520 where it is not clear whether probationer can be terminated in Industrial Disputes Act without giving opportunityto hear the employee on the charges . Citation published in 2000 ( v ) SCC 152 abserved that probationer has no right to be reinscated on the same post again . In the sak case provision of Industrial Disputes Act are not discussed and observed does not require any enquity while terminating employce who is on probation . Against that citation producedby second partypublished in 1970 II LLI page 454 SC revealis that, termination of the employee who is in probation if done without show cause and bolding enquiry it is nhserved that , it is not just and legal . It is further observed that, if such atermination is challenged before Tribunal by employeewho was on probation without holding enquiry and without hearing him in that case , Tribunal can consider the validity of order of termination and can see whether any reason is assigned in terminating the employment . So rario led by Apex Court while deciding case of Brokebond V/ s 1.K.Gautam supra observed that , when employee is on probation does not give blanket right to the employer to

4857

भारत का राजपत्र अगस्त 4, 2007 / आवण 13 , 1929

terminate the employee during probation without bolding an enquiry.

9. Admittedly there was no chargesheet and no enquiry . Admittedly no explanation was sought from second party for what he was terminated and what was in the mind of first party in terminating the second party. It appear that on the basis of arrest in Session Case pending against him in ' Palghar Court ' he was terminated . The case of the second party is that he was acquitted by Palghar Session Court and that fact is not disputed by first party. So this reveals that , on the so called complaint first party sct upon and decided to terminate his employment which is notjust and proper . What ever may be in the mind of first party about second party, it must convey it to him and sought explanation and thereafter can take action . But here no opportunity of that type appears given and simply first party safely rely on the prosecution of the second party and decided to terminate during his probation observing hisworkwas not satisfactory. Moreover nothing is stated about bis work . No specific event is mentioned bywhich it can be observed that work of second party was not satisfactory . No any case is projected except so callerd criminal case and reason behind bis terroination. So all these reveals that, first party took law in its hand and decided to terminate his employment which is not just and legal . It is noted that , this employee is protected by provision of Industrial Dispures Act . His services are governed by the provision of Industrial Disputes Act . In this scenario the action taken by first party if considered , one willhave to conclude thut, it was not legal and just. So, I observe that , termination is not justifilable as well as legal one .

Issue mos. 2 & 3 :-

10. Second party claim reinstatement with continuity of service. First party challenge it saying that , he approached after 6 years from termination which is not just and legal .

11. The case made out by second party that , his criminal case was decided to merit on 8-4-2002 whereas he was terminated on 8-6-96. Besides reason of termination is a prosecution going on against second party in Palghar Sessions Cotirt . So definitely when second party got a clean chit about his so called charges , it might inspire him to approach for employment in which in my considered view it is not unjust or against the common sense of the commoo тел . When he go clean chit from the Court nin 8-4-2002 which is not disputed and challenged by first party, definitelybe might have considered about his employmenl and accordingly he approached Tribunal . So in my considered view delay caused is explained by second party saying that he was sequitted on 8-4-2002. So his approach in2002 against the temination of 1996 isjustified.

12. It is matter of record that, he did not work with fust partyfrom 8-6-96 . First party is a Research Institution [PART 11- SLC 30ⅱ ) ) 4858

THE GAZETTE OF INDIA: AUGUST 4.2007 / SRAVANA 13, 1929

ANNEXURE

'which is dealing with nuclear power . It is a publicbody run in the interest of public . When second party did not work for first party from 1996 in my considered view, he is not entitled for backwages.

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT - IL ASANSOL

PRESENT

Sri Md. Sarfaraz Khan , Presiding Officer

Reference No. 58 of 2005 13. As observed above, decision takenby first party oftermination without enquiry and without issuing charge sheet is not just and legal . Moreover the so called charges levelled against him were discharged by the comреtеnt ourt . So all that permits second party to claim employment with first party but with no other ancillary benefits . Accordingly I answer above issues and passes the following coder:

Parties: The Agent. JK Nagar Colhery ofE.CL. Bidhanbag, Burdwan

ORDER

Vrs

1. Reference is partly allowed.

TheGeneral Secretary, KnyalaMazdoor Congress. Asansol , Bardwin

REPRESENTATIVES

2. First party directed to reinstate second parly Shri Rajendra. R. More 15 Helper within three monchs from the order of this Tribunal and go on paying biro his wages to the basis of his last pay drawn when terminated .

Sri P.D. Das , Advocates

For the managerne.nl

For the union (Workman ) : Sri S.K. Pandey, Generat 3. Prayer of second party to give continuity in service and other ancillary benefits like backwages are rejected.

Secretary .Koyala Mazdoor Congress . Asansol .

Date: 15.06 2007

A.A. L.AD , PresidingOfficer

Industry: Coal Stare: West Bengal नई दिल्ली , 17 जुलाई , 2007

Dared the24-11-2006

AWARD

का.आ. 2146.औद्योगिक विवाद अधिनियम , 1947 ( 1947 की 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार ई. सौ . एल. के प्रबंधतंत्र के. संबद्ध नियोजकों और उनके कर्मकारों के बीब, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अभिकरण आसनसोल 'के पंचाट ( संदर्भ संख्या 58/2005 ) को प्रकाशित करतो है, जो केन्द्रीय सरकार को 17-7-2007 को प्राप्त हुआ था ।

In exercase ol powers conferred by clause ( d) of Sub- section ( 1 ) and Sub- section 2 ( A ) of Sectiont of the Industrial Disputes Act , 1947 14 of 1947 ) Government us India through the Ministry of Labour vide ins letter No.L- 22012/355/ 2004- IR ( CM - 111 dated 21-7-2015 has hoen pleased to refer the following dispute for adjudication by this Tribansal.

[सं. एल 22012/353/2004 - आई आर ( सोएम -1 ) ] अजय कुमार गौड़, डेस्क अधिकारी

SCHETAJI F.

New Delhi, the 17th July,2007

"Whether the arron of the management of J.K.Nagar Culliery under Satgram Area of M / s . ECL in dismissing Sri Babui Majhi , Electic Helper from service w.e.l. 29-12-1992 is legal and justified ? If nol . towhat relief dae worknian is entitled and from which date ?"

S.O. 2146.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Centrul Government bereby publishes the award (Ref. No. 58/ 2005) of the Central Government Industrial Tribunal - cum- Labour Coun , Asansol as shown in the Annexure in the Industrial Dispute between the management of Ms. Eastern Coalfields Limited , and their workmen , received by the Central Government on 17-7-2007.

(No. 1,22012/355/2004- IR (CM -0 ]

AJAY KUMAR GAUR, Desk Officer

After having received the Order No. 22012/355/2004- IR(CM- II) dated 21-07-2005 of the aforesaid reference from the Govt . of India , Ministry of Labour , New Delhi , for adjudication a reference case Nn. 58 of 2005 was registered 4859

भारत का राजपत्र अगस्त 4,2007 / श्रवण 13 , 1929

[ भाग II खण्ड 3( i ) ]

Limal hearing. It is further clear from the record that some Xerox copies ofthe documents have been filed by the side of the union in support of its claim. The copy of the charge sheet, enquiry procedings , enquiry report, medical certifi- çate, dismissal order and copies of representation dated 18-8-1993 and 18-6-98 aristressed to the G.ML , Satgram Area have been filed in the court .

5. Keeping in view of the pleadings of the union and the material available in the record I find cenain faces which are admitted one .

π 17-08-05 and accordingly an order to that effect was passed to issue notices through the registered post to the parties concezned directing them to appear in the court on the date fixed and file their written stanements along with the relevant documents and a list of witnesses in support of their claims. In pursuance of the said order notices by the registered post were issued to the parties concerned. Sri P.K.Das , Advocate and Sri S.K.Pandey, General Secretary of the union appeared in the Court along with a lenter of anthority to represent the management and the union respectively . The written statement on behalf of the union was filed but in spite of several adjournments and direction no written statement was filed on behalf of the management and ultimately the case was fixed for final hearing.

6. It is the admitted fact that the workman concerned So.Babui Majhi was in the employment of the company as Electric Helper at J.K. Nagar Colliery under Sargram Arca ofM/s .Eastern Coalfields Limited. It is also admitted thal the delinquent employee was absent from his duty w.e.f. 23-6-92 to 17-8-92 without any leave or prior permission and without any information to the mвпаделю and accordingly he was charge sheeted for his unauthorized absence from duly.

7. It is also directly or indirectly admitted case thar the workman concerned never reported before the colliery management during the entire period of absence nor any written intimation stating the reason of his ab- sence was submitted by the delinquent employee to the management .

8. It is obvious from the record, enquiry proceeding and its finding that Sri Bhailal Hela and Bansrupon Chowdhury the management representative were examined before the Linquiry Officer who has categorically supported the fact that the delinquent employee was absent dwing the relevant pernod without information/authorized leave which is adroitted by Babui Majhi , the workinan concomed in his statementbefore the enquiry officer .

2. In brief compass the case of the union as set forth in its written suatement is that Sh . Babui Majhi , was a permanent employee of the company as Flectric Helper at J.K.Nugar Colliery under Satgram Arca of M/s. Eastern Coalfields Limited. The main case of the onion is that the delinquent employee absented from his duty w.c.f. 23-6-1992 1 14-8-1992 due to his sickness for which he was charge sheeted vide change sheet No. ECL/ IKN/ PER/ 92/4285duled 14/ 17-8-92. After being declared fit thework- man concerned reported in the roanagement for resump- tion of his duty but he was not allowed . It is also the case of the union that the worknum concerned replied to the charge sheet and appeared before the enquiry officer and submitted his sick certificate etc. for the perusal of the enquiry officer but surprisingly enough the workman was dismissed from the service of the company on 29-12-1992 by the General Manager , Satgram Area. The workman along with his union tried their level best to pursue the management for his reinstatement but to no effect and his assue was kept pending for years together without any decision.

3. It is also the claim of the union that the delin- quent employee is sitting idle without any job from the date of dismissal and his whole family is on the verge of starvarion . The dismissal of the workman concerned frurd the service of the company is claimed to be illegal and unjustified . The union has sought a relief for the reinstale- ment of the workman concemed on the service after set- ting aside the order of the dismissal passed by the man- agement together with the payment of the full back wages und al: the consequential benefit.

9.Having gone through the entire facts , circum- stance, enquiry proceeding and its findings I am satisfied to bold that the workman concerned was admittedly absent from his duty during the relevant period continuously without any sanctioned leave, prior pentis- sion or information to the management . The Enquiry Officer has tightly beld him guilty for the alleged charge of unauthorized absence w.e.f. 23-6-92 to 17-8-92 and in view of the prevailing facts the delinquent employce deserves some suitable punishment for the alleged proven miscon- duct as per the provision of the Mndel Standing Order applicable to the establishment

10. Now the only main point in issue for consider- ation before the court is to sec as to how far the pumish- ment of dismissal awarded to the workroan concerned by 4. From the perosal of the order sheets ofthe record it transpires that right from the date 14-10-05 to1,5-9-06 several adjouromeats and direction by way of last chance fer filling the written statement were given to the manage- ment but to no effect and ultimately the case was fixed for 486다

]PART . SFC.. ) ر ( THE GAZETTE OF INDIA : AUGUST4 , 2007 / SRAVANA 13.1929

the displinary authority is just , proper and proportionate to the alleged proven nature of misconduct.

It . Heard both the parties on the points in issue . It was submitted by the union that it is a simple case of an unauthorized absence for about two months only and the absence from the duty during the relevant period in duly explained and the reasons of shsence supported with real ment papers and medical certificate is relevant and satis- factory The enquiry officer hus also not whispered even a word that the reason of unauthorized absence was with- out any satisfactory reasons .

absence for about two months under the compelling circunasrancebeyond his ensteni. It is clear that there is no charge of habitual absenteeism proved against him and it is the first offence. Besides this the workman has got unblemish record as no evidence or document has been produced by the management in this regard. The attention ofthe court was drawn by the union towards the provision of the Model Standing.Order laid down under clause 27 ( 1 ) (page 15) where various minor pustishment have been pre- scribed to be awarded accordingto the gravity of the mis- conduct . 1 fail to think as to why only maximum punisl ment available under the said clause should be awarded in the present facis and incumstance of the case . It has been nhserved by the Apex Coust that justice must be tempered with mercy and that the delinquent employee should be given an opportunity to referm himself and to be loyal and disciplinary employee of the management

12.11 as further submitted that the workman con- cerned has got unblemish record during the service tenure and there has not been any complain of any misconduct against the workman concerned. The management has also nor heen able to prove the charges of habitual absentee- ism and no chit ofpaper in this regard has been filed in the court . So it can be easily concluded that ir is the first nefence of the workman which has been sufficiently ex- plained and jupported by the medical certificate indicating the tempelling circumstance beyond the control of the workman .

13. In course of argument it was also subarined the a simple care of unaudrinized absence for about two months can por he said to be a gross misconduct and in rhis context the attention of the court was drawn towards the provision of the Model Shangling Order where the ין shment prescribed is dismissal as per the gravity of the misconduct and it was claimed that the extreme penalry can nut be imposed upon the workman in such a minor case of alleged proven misconduct of a Bruthorized absence. The submission of the union is gol much force and reasonably convincing .

Lú. HoweverTam of the new that the pitnishment of dismissal lor an unauthorized absence for about two monchs under the compelling circumstance and without any malatide intention is not just and proper rather it is too harsh a punishm.em which is totally disproportionate ra the alleged pinsen misconduct . shocking to the judicia . conscience of the court . Besides this as per the directions of the Apex Court no secund show cause notice before imposing the punishment of dismissal has been issued to the workman concerned which is the direc: violation of the directives ofthe Apex Could Die principles of الي Justice as well . Such a sample cose should have been dealt with leniently by the management . In this view of the matres 1 ahisık it just and proper to modify and substitute the same hy exercising the power under Section the LD Act . 1247 in order to meet the ends of justice and as such the impugned order of dismissat of the concerned workman is hereby set aside and he is directed to be rein- stated with the continunty el the service. In the light of the facts. circumstance and the pausen misconduer under which the punishment of distrussal was awarded to the workman concerned I think at uppropriate that the delin- quent workarian be istupased a punishment of stoppage of two increments without any cumulative effect . 10 is further directed that the workmar concerned will he entitled to get unly 50 % of the hack wages which will serve the ends of justice.Accordingly it is hereby

ORDERED

14. 11 has been several comes clearly observed by different Hon'ble High Courts and the Apex Court as well that before imposing a punishment of dismissal it is neces- saay for the disciplinary authority to consider socio economic back ground of the workman , his family back ground. length of service put in by the employee , his past records and other surrounding circumstances including the nature of misconduct and lastly the compelling circu stance to commit the misconduct . These are the relevant facrors which must have to be kept in mind by the author- ity as the time of imposing the punishment which of course has not beeri done by the authority in this case...

thay len an Award " be and the site is pinsed in favour of the workman concerned. Send the copies of the award 10 the Cius India, Ministry of Labour . New Dech: for infomnation and needful . The reference is accordingly disposed of .

15. No douh: the workman concerned is an iliterate man of the weaker section of the society who is adınittedly financially weak and pour who has suffered a lot for more than 12 years for a minor misconduct of unauthorized

MD . SARVARAZ KILAN, Presiding Oficer 4861 [ भाग -खण्ड (ii) ]

भारत को राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

नई दिल्ली , 17 जुलाई , 2007

workman is gainfully employed some where and not interested to pursue this reference .

3. In view of the above, since the workman is tot appearing despite registered notice, no purpose will be served in keeping this case pending. Therefore , the present reference is returned for want of prosecution to the Central Govt . File be consigned to recurd .

Chandigarh

का.आ. 2147.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण नं.1 , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 147/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-7-2007 को प्राप्त हुआ था।

Dated:4-7-07 RAJESH KUMAR, Presiding Officer नई दिल्ली, 17 जुलाई , 2007

[सं. एल-22032/4004 /1999 आई और ( सी- II) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the17th July ,2007

का.आ. 2148, औद्योगिक विवाद अधिनियम , 1947 (1947 का ( 4 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार केन्द्रीय रेलवे कुर्ला डीस्ल लोकोसड प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण सं. II मुम्बई के पंचाट ( संदर्भ संख्या 80/2003 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17-7-2007 को प्राप्त हुआ था।

[सं. एल-41011 /43/2002- आई आर (ची-1 ) ] अजय कुमार , डेस्क अधिकारी S.O. 2147. In Pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 147 / 20XX) ) of the Central Government Industrial Tribunal.com Labour Coun , No. 1 , Chandigarh as shown in the Annexure in the Industrial Dispute between the employers in relation to the the management of F.C.I and their workmen, which was received by the Central Government on 17-7-2007.

NewDelhi , the 17th July,2007 [No. 1-22012/4/ 4/ 1999- IR( C- II)] AJAY KUMAR GAUR, Desk Officer

ANNEXURE BEFORE SHRI RAJESH KUMAR, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUML-LABOUR COURT-1, CHANDIGARH

CASE NO. L.D. 147/2000

S.O. 2148-In pursuance of section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 80/ 2003) of the Central Government Industrial Tribunal- cum- Labour Court - 1- Mumbai as shown in the Annexure in the Industrial Dispute between the management of Central Railway , Kurla Diesel Toopshed and their workmen, receivedby the Central Government on 17-7-2007-

[No. L-41011 /43/2002- IR (B-1 ) ) AJAY KUMAR, Desk Officer Shri Bhadur Singh So Sh . Tara Singh Village and P.O. Kathunangal Amritsar (Pb .) ...Applicant Verans

The Distt. Manager . Food Corporation of India , 86, Rani KaBagh , Amritsar ( Pb .) ...Respondent

APPEARANCES

: Nun

ANNEXLIRE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL. NO. 2, MUMBAT PRESENT:

Shri N.K. Zakhuni

For the Workması For theManagement

A.A. Lad, Presiding Officer AWARD

ReferenceNo. CGIT -2/90s 2003 Passed on 4-7-07

EMPLOYERS IN RELATIONTO THE MANAGEMENT OF CENTRAL RAILWAY, KURLADIESEL LOCOSHED Central Govt . vide novification No. 1-22012/404 /99 / IR ( CM II ) Guled7-3-2000 has referred the following dispurte to this Tribunal for adjudication .

( 1 ) TheDivisional Mechanical Engineer (D) Central Railway Kural Loco Shed, Kurla Marobai-400024

(2) The Divisional Railway Manager Central Railway Mumbai Division , MumbaiCST Mumbai-400001 .

""Whether the action of the management of Food Corporation of India. Amritsar in terminating of services of Shri Bahadur Singh Sto Sh. Tara Singh w.e.f. 1.1-1997 without paying bin any retrechiment compensation is legal and justified ? If not , to what relied the concerned workman is entitled and from which date?"

(3 ) The General Manager Central Railway Mumbai Division, Mumbai CST Mumbai -400-001 .

AND TheirWorkmen

2. C'ase repeatedly called None has put up appearance ou behalf of the workman Shri N. K. Zakuti advocate for The management submitted that worlonen petitioner has not appeared on this case despite registered notice for loday . He submitted that earlier also in the whole year in 2004 and thereafter on 17-4060 24-5-06.22-8-06,8-11-06 at 20-12-06. 28-2-07, 24-5-07 and today 4-07-07 none appeared for the workman . It appears the workman is not interested to pursue his cuse. He is not responding to عطا registered notices of the court even . It appeares that

TheGeneral Secretary Indian Railway Technical Staff Association (CR) 2., Mahabir Yadav Chawt NagarDasRoad,Andheri (E) Murobai-400058.

4862

THE GAZETTE OF INDIA ALGUST 4 , 2007 /SRAVANA 13 , 1929

APPEARANCES

For the Employer

: Mr. Mandeep Sahni , Representative For the Workman

: ΜΓ.Α. Β . Mistra Representative Mumbai , dated 12th June,2007

AWARD

The Governarient of India , Macastry of Labour, by its order No. L-41011 / 43 /2002 - IR (B -I ) dated 25-11-2003 in exercise of fie powers conferred by caluse (d) of sub- section ( 1 ) and sub - section 2 (A) of Section 10 of the Industrial Dispute Act, 1947 have referred the following disputeto this Tribunal for adjudication :

Whether the action of the General Manager, Central Railway,Mumbai CST and other officials in imposing the punishment of reduction of pay from Rs. 10,500 per monthtoRs . 6,5000 per month for a period of S years with future effect is legal , proper andjustified? If not to what relief ( including the refund of arrears of pay and recovered Penal Rent and uther consequential benefits , etc. along with the promotion to the higher post at par with his juniors) Shri A. N. Pandey, Section Fingineer (T & C) Diesel Loco Shed, Kurta is entitled for and from which date and what other directions are necessary in the 2 To support the subject matter referred in the reference. second party place reliance on chairm statement filed at Ex 13 stating that, he worked with frist party as a Section Lingbeer Battery Section at Diesel Loco Shed at Kurla. He worked for 18 yeus continuously . During that period aumber of charge sheet were served on him as mentioned in para 2.50f his clam statement . On number of occasions charges levelled against him were exonerated in the inquiry. The present reference is pertaining to last charge sheet dated1.5-9-98 where he was not found guilly before Inquiry Officer still managerment punished him on allegation of subletting Railway Quarters. According to bim charges levelled against him in charge sheel was uf vague nature.Infact Railway Quarter of Byculla was allotted to him but recovery was made regarding sub letting of RailwayQuaper ofMazagaon and at G. T. Nagar from which quarters were not allotted to second party. The case of allegation of sub letting Railway Quarter of Mazagann is made out hut actually Quarter of Byuculla was allotted to the second party. It is not explained as to bow Railway Quaner of hycutle is included in the said list which is not al all related in the enquiry. Besides Inquiry Officer exonerated charges of subletting Railway Quarter still ,R.S. Rajoria considered evidence observing charges are proντί when second party did not accept the other officer given by R.S. Rajoria to pay Rs . 10,000 to show favour.He complained about R. S. Rajoriato show how he has shown bisbias mind and howbe ignored the findings ofthe Inquiry Officer. Beskles he was purposely not promoted . Even damages Rs . 57.14 ] were recovered illegally. So he prayed to recover Rs. 10,500 per month for a period of 5 years. lie also prayed to give promotion with instruction to first party with ancillary benefics.

3. This is disputed by first party by filing written starement at Ex - 15 stating that , second party is not a

[PART II-SEC. 3Gi ) ] 'workman ' and as such he is not entitled to raise dispute Besides ir is coarended that , he has not exhausted departmental remedies before approaching the Tribual or Cunscilination Officer and on that count also his reference faits . Besiders it is contended that he filed recovery applicacion under Section 33 C (2 ) befure NIT - 1. Mumbai where he got relief. Even he is promoted as per his chaim. Buthe did not report on promoted place since he was nol getting IFRA facility which is available at Mumbai . So it submitted that , entire claims of second party dnes not stand and require to be rejected.

4. In view of above pleadings issued framed ar F 18 are answered against it as foliows .

FINDINGS ISSUES

Does not Survive 1. Does First Pany prove that decision taken by it of imposing punishmeal of dertuction of salsiy from the scale of Rs . 8500W- t Rs. 6500 for 5 years is justifiable?

2 Does Scoond party prove thal he is entitled for the promotion as stated in para 2.1 of the Statemem ufclaim?

Nu,

3 Does he prove thar action taken by first party in mot refunding the rent was against rules!

Does not survive 4. Does he prove that action taken by first party of cancellation of Railway Quarter allored in him was against the principles of natural justice?

Yes .

5. Is Second party eurinled for serring aside the pumsh ment awarded to him by order dated 14.7.200 : and of1997 and is entitled for refund of damages?

6. What order?

Asper order below.

Yes

7. Whether second party is a warkıman?

REASONS

IssueNo.7 :-

S. This is an imperran issue which goes to the roof of the status of the second party workman as first party has challenged his statas at the begining of the written statement contending that second party is not a "workman' as he was discharging duties in the capacity of Suprvisor. Except that , 10 case is made out by first party . Moreover it is pertinent to note that application filed by second party was decided by CGIT- Iwhere CGIT- I Mumbai observed in saidApplication of second party as "workman' . Suid was decided on 9-1-2006. Besides in the evidence no specific case is made out and no evidence is led 10 project on duties 4863 [ भाग- खण्ड ( B ) ]

भारत का राजपत्र 1 अगस्त 4, 2007/आवण 13 , 1929

and promotional post. He also admits that, due to transfer toKurduwadi he was losing HRA from 30 % to 7.5 % since Hewas getting 30 % at Mumbai and will be getting 7.5% at Kurduwadi . Besides he answered that , the cannot he transferred on promotion since he is senior most . He admits that, he has not challenged promotion on that groupd before any foruro . So all these reveals that, opportunity was given to him by promotion on the post of Sr. Section Engineer ов 4-11-99 but he admits that, he did not report on that post. This reveals that , he suo motto waived his right of promotion .As of right asper his whitus and ideas he cannot claim promotion , as observed by Apex , Court recently where it is observed that promotion is not a right .

Lues No. 3 to 5:

of the second party to treat him as 'not workinan an dexclude him from the definition of 'workman' . Burden of proving this issue rest on both. Second party has to prove turt be is workman whereas first party has to prove thathe is ' not workman' .The case of bolding by Inquiry Officer on the charges of sub letting Railway Quarter to others alloued to sexcard party are admitted and reveals that, second party was presumed by the first party sa 'workroan ' for ever in the proceeding as well as initiating enquiry against hira . In recent ruling Hab'ble Bombay High Court while deciding case of George Thomas Vis Science Technical Centre published in 2007CLR page 185 recently observed that , "When all the lime worldman is treated as employee , he is to be declared as a workman under Section 2 )8 ( of the Industrial Disputes Act " Considering thمث case made out by both Iconclude that, second party is workman.

Issue No. 1 :

8. The main grievance of second party is thei , enquiry conducted against him on the ground of alleged sub letting quarters of Mazgaon and at GTB Nagar was not correct. Charges were not proved . Though the charges were exonerated change sheel was served and enquiry was conducted. According to second party question of sublating Railway Quarter of Mazgaon and at GTB Nagar does not arise as quener was allotted to him of Byculla and not of Mazgaon and GTR Nagar . Even Inquity Officer exonerated the charges of subletting Railway Quarter of Mazgzon and GTB Nagar, Even there was not evidence before InquiryOfficer to conclude that , second party has Literally subletted Railway Quarter in other. Eved therewas no finding from loquiry Officer on that point against the charges of subletting quarters: Still Managemem has punished him and recovered damages.

6. This issue is regarding imposing punishment of reduction of salary from scale ofRs . 10,500 to Rs . 6,500 for 5 years which was questioned by second party and to see whether itwas legal ? As far as this issue is concerned, we find no pleading is made out by second party in claim scatement filed at Ex - 13 vis- a- vis in the Written Statement Filed by first party at Ex - 15 . I think this issue came and appears to be from dispute referred by the Central Govemment , Ministry ofLabour about treating as OME of the dispute . However nothing is stated by second party On this in this reference nor considered it by first party bo reply it though it is actually one of the subject matter of the reference. In the cutive reference bath have concentrated on sub letting of Railway Quarter by second party, chargesheet issued against second party , enquiry conducted , charges were exonerated by the InquiryOfficer still management took different view and recovered the rent from second party from bis wages. Besides issue of promotion is thade out by second party and it is challenged by first party. As far as enquiry , reduction of salary from Ks . 8500 to 6500 is concerned is not at all subject matter of the evidence led by both and case made out by them . So I conclude that, this issue does not arise siroce nut traced by both.

Issue No. 2

9. The witness examined by first party Ex.-21 admits that the quarter was not checked to ascertain whether it is sub- letied by second party. Evenhe admits that , charges were exonerated by Inquiry Officer. Even he admits that, damages, recovered from second party of Rs . 32,300 were refundedto him . Even CGIT - I , Mumbai in 33 C (2) Applicatiom observe said recovery of damages were illegal and second party is entitle to recover it from first puty. Said order is not challenged by first party. Even second party admits that, damages Rs . 32,196 were repaid to him after 9 years . When finding of Inquiry Officer was not against second party and when charges were not proved. and when damages recovered were repaid to the second partyas per order passed in application filed under Section 33 C (2) , Lath , of the view that, now second party is not entitled to uny telief. It is proved that, cancellation of RailwayQuarter allotted to him and charge of subletting it wus against the principles of natural justice. However this Court cannot consider that aspect though representative of second party place reliance on sumber of rulings .

10. As far as issueNo. 5 is concerned , he has secured order ofCGIT- Lun Application filed under Section 33 C(2) .

11. So ifwe consider all that coupled with case made out by both . I conclude that at present second party is not entitled to get any more. Hence the order.

ORDER

Reference is rejected.

A.A. LAD, Presiding Officer

Date: 12-6-2007

7. This issue is regarding entitlement of promotion hy second party. Said is denied by first party saying that , Though promotion was offered to secund party has ignored it and nowhe cannot clairo promotion. In that respect ifwe peruse cross examination of second party we find , that he admitted that he was promoted on 4-11-99 as Sr. Section Fogineer . He further stated that , he was not officially intormed. Answer given by secund party to this reveals that, he was promoted and be is not denying that he was promoted. Even he admits that , he has produced the cupy of it obtained by him from others, where his name is also inclurted in the promotion list. When he was questiomecl nhat , he replied that, be got same at that timeonly. Even he admits that he was promoted and transferred to Kurduwadı and when question as to why he did not proceeded in promoted posting to which he replied that question does not arise since department proceeding was pending against him . In my considered view pending deparuthent proceeding cannot be excuse to join on transfer

3218 G137-7 4864

THE GAZETE OF INDIA : AUGUST 200 SRAVANA 13, 1929

नई दिल्ली , 17 जुलाई , 2007

का.आ. 2149 ,-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का (4 ) के धार । ? के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंग्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बोच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण. कानपुर के पंचाट ( संदर्भ संख्या 4/2002 ) को प्रका হাতে करती है, जो केन्द्रीय सरकार को 17 7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/357/2001 आई आर ( बी-1 ) !

PART II- SSC. ( i ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 17th July,2007 S.O. 2149. In pursuance of Section 17 ot the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 4 2002 of the Central Government industrial Tribunal -cum- Labour Court, Kanpur as shown in the Annexure in the JJdustal Dispute between the managerment of State Bank niricia and their workmen , received by the Central Govemabenton 17-7-2007 .

No. L- 12012/357 /2001 - IR ( B- I) | AJAY KUMAR Desk Officer

ANNEXURE

BEFORE SRI R. G. SHUKLA, PRESIDING OFFICER, C.GLT. CUM- LABOUR COURT, KANPUR, UTTAR PRADESH

Industrial Dispute No. 4 of2002

In the maller of dispute between:

Sr. Satendra Kumar Jan

500 Late Sh , Parmesti Prasad Jain

K/ 3 23 Jhanda Bazar Dehradun: And

The General Manager Stitle Bank of India Zonal offre Raipur Road Madhuban Hotel

Dehradun.

AWARD

1. Central Government , Ministry of Labour, New Delhi .vide antification No. L- 12012/357 /2001 - IR (B-1 ) dated 17-1-2002 bas referred the following dispute for adjudication to this tribunal :-

"Whether the action of the Srate Bank of India Dehradun in teminating the services of Sh . Satendra Kuinar Jain Pigmy Deposir Agent , w.e.f. 10-3-1989 is justified? If nol, what rebet he is entitled?" 2. In the instant case after receipt of the referenке order from the appropriare government , registered notites were issued to the contesting purties by the Tribunal for filing eir claims and counter claims. La response 10 the same copresting parties tited their claim and counter claim before the tribunal and thereafter rejoinder stillerneni was tied by the workman.

3. It is needless to mention that neither the concerned workman nur his authorized representative has ever atte: led the proceedings of the case at any point of time. Whereas statement of calim was filed on behalf of the workman through the brief holder Sh. Pawan Kumar Tripathi , ofthe representative for the workman , rejoinder statement onbehalf of the workman was received in the office through post. It may also he pointed out thar the rejoinder stacement filed on behalf of the workman was rejected by the ribunal vide order dated 14-7-2003 as the same was not found to be proper and the case was posted fur evidence ofthe parties. Neither workman himselt mor his representative ever presented themselves before the ribunal for adducing evidence in support to their case . Management apart from filling documentary evidence has also adduced ural evidence of their witness by name Inder Mohan Bhargawa as M.W.1 . tot he was not cross examined from the workman as none was present on the date of recording evidence of the management . The evidence of the managemerit , therefore , goes un controverted and the tribunal feels nu hesitating in believing the same . It is also clear from the conduct of the workman that be palpably faited to substantiate his claim before the tribunal by adducing acceptable evidence nrall - as well as documeimary .

3. Any way at thay be pointed nu that it is commin ground of the contesting parties that the contesting parties arrived at an agreement dated 29-3-79 in which it was ugreed upon between the partics that the concern workman will provide services to se management of StateBank of India. for which he will be paid remuneration . This agreement was arrived an under a scheme know as Janta Deposit Scheme and a copy of the agreement dated 29-3.79 is on record of the case. Under the terms of agreement the workman was required to open sinall accounts under the said scheme from public ar large and tu deposit the same with the bank that the workinan will be provided wages/ remuneration by way of commission on the amount deposited by the workman under the scheme . It was also agreed upon between the partles that in case ot viulation uf any one of the conditions of agreement , his agency is liabletu be ten nainated without any prior notice by the bank .

4. It is the specifes case of the workmar, that the bank bus terminated his services w.e.1 . 10-3-89 without uny notice orwithout having any departmental inquiry against him, therefore , the termination of his services from bank is in gross violation of principles of natural justice . It is the further case of the workman that the bank had also lodged F. I. R.00 1023-89uder section 408 of I. P. C. on false ground which ultimately culminated in favour of the workman as he was honorably acquitted by the crint กล ไ coure vide judgement Jated 17-12-1998 . The workman thereafter approached the authorities of the bank for his reinstatement burall in vain. Ichas been further pleaded by the workman that in any case he could not have been removed from the services of the bank without there heing aregular departmental inquiry against him on the alleged charges for which F. 1. R. was lodged by the bank . Lastly it has been pleaded by the workman thar the entire action ol the opposite party is wholly illegal and violating the ules भारत का राजपत्र अगस्त 4, 2007 / ण 13 , 1929

[ भाग-खण्ड 3( ii ) ]

4865 governing the service conditions and principles of med justice therefore , be should be reinstated in the services o the bankwith full back wages , continuity of service and all consequential benefits .

the rest of the amount . When heffins tailed to get deposit theremaining amount from the claimant Branch Manager lodged FIR dated 28-5-89 against the workman at PS Kotwali , Dehradun . The work of deposit collector in Janta Deposit Scheme and the work of regular and permanent employee of the bank is distinguishable and cannot be brought al par with each other . Bank bas simply terminated the agency of the claimant in view of stipulation contained under sub provision ( 1 ) of provision 4 of the agreement damd 29-3-79 I has also been alleged by the bank that when the claimant never remained in the employment of the bank ar any point of time question of terminating his services from the bank does not arise at all and the wi skutit . on this score cannot be held entitled to be reinstated in the services of the bank.

5. On the other hand the claim of the workman has been contested by the management back on variety of grounds, inter alia, that the worioman was never appointed against any sanctioned post by the managerment of State Bank of India after subjecting him through regular selection prkess nor any appointment letter was ever issued to him by the bank. As maner of fact the bank has terminated the terms of agreement bound agency, as the work ofthe workman was not satisfactory which cannot be construed as removal from service as claimed by the workman . It has ulso been pleaded by the bank that the bank hired the services ofthe workman under Janta Deposit Scheroe and the workman was paid his commission on deposit. He was never paidhis wages as was paid to regular and permanent employce of the bank. It was clearly indicated in the agreement that bank may without notice terminate the agency at agy time, if the deposit collector : ( i ) commits treach of any of the terms and/or conditions of this agreement and of the Rules and Regulations referredto above and also of other such directions as may be issued from time to time by the bank in this behalf; (ii) is adjudicated insolvent or is convicted by any criminal court for any ffence involving moral turpitude or is declared to be of Losound mind by any court of competent jurisdiction or ; (iii) suffers in the opinion of the bank from any physical or other infirmity that renders him unfit for discharging or fulfilling his duties and obligations under this agreencal; ( iv ) is guilty of misappropriation or misapplication of umounts collected from the deposits ; (v) cowomits any act which the bank considers as prejudicial to its interest or is found defaulting babitually in observing the Rules and Regulations or directions.

7. Ex parte arguments on behalf of the hank were heard in detail by the tribumal and the tribunal inas also examined the file carefully. As pointed out alive , the evidence of the management in support of their case pocs uncontroverted hence the tribunal feels no hesitation in believing the case as set up by the opposite parts 19: hank has simply terminated the agency of the chai instead terminating his service from the bank . Tribuna ? is further of the view that termination of agency under contract connet be construed to be permimation of the service of the claimant by the bank. The cluim of the claimant also appears tobe barred by the provisions of Section 2 ( on ) ( bb ) of the I. D. Act, 1947. It is settled law that the tribunals are not empowered to reduce or enhance the sonpe and ambit of the schedule of reference order in view of sub section (4) ofSec. 10 ofthe Act , therefore, it will be futile exercise on the part of this tribunal to travel beyond the scope and ambit of the terms of agreement dated 29-379, which is the very basis of schedule of reference order which clearly indicate that the bank has terminated the agency of the claimant in terms of Pasa 4 ( 1 ) of the agreement dated 29-3-79. To view of it cannot be presumed even for the sake tof arguments that the alleged claimant ever remained in the active employment of the opposite party bank or hank has ever issued any appointment letter in his favour or there existed any regular or permanent vacancy at the branch (herefore, from this point of view the schedule of reference order appears to have become intructuous . Therefore , it is concluded that bank have never terminated the service of the claimant from any regular or permanent post , question of granting him relief as claimed, does not arise at all .

8. In the end it is held that workman has palpably failed to substantiate his claim before the tribunal by adducing acceptable evidence, therefore, be cannot be held entitled for any relief and the reference order is boundto be answered against the claimant.

9. Accordingly award is made absolute holding that Sri Satendra Kumar Jain is not entitled for any relief and the award is decided against the claimant and in favour of the opposite party bank .

10. Reference is answered accordingly.

R.G. SHUKLA, Presiding Officer 6. Ithas further been pleaded by the bank that during the period April 1988 to November 1988 workman collected Rs .34,748 from various Janta Deposit Holders but did not deposit the same in the branch, which was required to be deposited by him either on the same day or at opening hours of the branch on the following day . The workman vide his letter dated 18-3-88 has admitted that he has not deposited the sauce in the branch. This clearly amounts misappropriation of funds of the depositor and also not observing rules and regulations framed by the bank . Regarding tormination of the agency of the claimant, the Branch Manager of the bank issued a public notice dated 1-3-89 in local news paper known as ' Doon Darpan " and after cancellation of his agency the claimant retamed all the papers , 1 -Card, deposit slip bill, account opening forms esc. It has also been pleaded by the bank that various depositors fromwhom the claimant coflected deposit under the scheme during the above period aggregating to Rs. 3,3,748 , contrary to the tarnas of agreement he had deposited only a sum of Rs . 23,600 in these instalments and sought further time vide hit letter dated 28-4-89 fordeposing THE GAZETTE OF INDIA : AUGUST4, 2007 / SRAYANA 13, 1929

[PART I - SEC 3 ) 4856

Mumbai , Saeed | Ith June, 2007 नई दिल्ली, 17 जुलाई 2007

AWARD

TheGovernment of India . Ministry of 1.ahnur. by irs order No. L-41116/ 2001 [ JR ( BT ) ] dared 22-02-2001 in exercise of the powers conferred by Clause ( d ) of Sub- seerion ( 1 ) and Sub - section 2A ) of Section 10 of the Indistrial Despurtes Act, 1947 referred the following dispute ra this Tribunal for adjudication :-

का. आ. 2150.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 11 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार कॉकन रेलवे कॉरपोरेशन लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औधोगिक विवाद में केन्द्रीय 'परकार औद्योगिक अधिकरण से 11 , भुध्बई के पंचाट ( संदर्भ संख्या 30:20/01 ) ः प्रकाशित करती है , जो केन्द्रीय सरकार को 177 2017 को प्राप्त हुआ था ।

[सं.एल -41012/06/ 2001 आई आर ( बी [ ) ]

अजय कुमार , डेस्क अधिकारी

"Whether the action of the management of Chief Engineer ( South ) Konkan Railway Corporation Ltd., Ratnagiri in terminating the services of Shri Ravinder Manohur Mulye we.f. 1-7 1995 is legal and justified? If not, in what relief the wackonen is entitled for?"

New Delhi , the 17th July , 2007

5.0.. 2150.- In pursuance of Section 17 of the Industrial Disputes Act . 1947 ( 14 of 1947), the Cearal Government hereby publishes the award (Ref. No.30/2001) of the Central Government industrial Tribunal - II , Mumbai as shown in theAnnexure in the Industrial Dispute between The Management of Konkan Railway Corporation Ltd. and ther workman . which was received by the Central Govemmon 17-7-2007 .

No. L-41012/06/2001 - IR (B - I)

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.IL, MUMBAI

Present: A. A. Lad, Presiding Offκαι

Rеfеrеnсе No. ( GIT -2/30 of 2001

2. To support subject matter referred in the dispute, second party rely on claim statement filed at Ex - t6 stating chat,hejoined first party in Ise capacity of watchman w.e.f. 13-12 92.He worked continuously . He was posted for 12 hours watch duty at Open Yard Store . He was attending work which is of permanent nature . He was signing recurd and mustes maintained by first party . He was supervised byAssistent Controller of Stores lie was puid monthlyon daily wages forRs .30 for 12 hours daty . First paty exploited second partyworkman taking advantage of his social and economic backwardness . He was mol granted privitege leave or any other benefits . On 01-07-95 he was asked by Chief Engineer not to report on duty . According to second party , said instructions were against the privisions of Indisu ial Disputes Act . more precisely said instructions viulate Section 25 F of Industria ! Dasputes Act . So it is suhmitted that instructions given by Chief Engine (S ) preventing workman not ne aneped duty from [ -7-95 be quashed and set aside directing first party to reinstate him with benefits of backwages and other consequential benefits .

EMPLOYERS IN RELATION TO THE MANAGEMENT OF KONKAN RAILWAY CORPORATION EID

The Chef Linganeer.

Vezikun Rapway Corporation Ltd., Kalmagin South , Каліцу Сolaplex , MIX,Mujule Ramagun 415639 ( MS)

TheWorkman ,

Mr Kevinaer Mannhar Muiye, Pear Parnval Till .& Dist Ratnagir. 415619 Shurashtra)

APPEARANCES

Mr. Gurugach Naik Advocate

Frorthe Employer :

iurthe Woman

Mir. J. H. Sawant Advocate

3. This is disputed by first party by filing wallen statement al 1-8 denying relationship as Employer- Employee. It is contended that second party was taken on Contract basis . Ile was purely working as temporary workman on daily wages . No assignment was given to him by the first party Wages were given at the rate ofRs 30 per day.He uutomatically stopped int reporting from duty from Isı July, 1995. The alleged termination we.f. Ist July . 1995 is challenged by second party by approaching ALC (C) in 2000 1.c.. after about five years. He worked with first party in onntract basis frum 13-12-12 tn 1-7-95 and remained absent without intimation and abandoned the job thereafter When seoonid party was not regolar employee does not altract the protection given under Industrial Disputes Act and in that scenario first party was not supposed to give norice, uffer retrenchment compensation or follow procedure of issuing charge - sheet on abandonment ofji and conduct enquiry . So it is submirted that , claim be rejected.

i [ भाग 11-खष्ठ 3( ) )

4867

भारत का रायपत्र अगस्त 4, 2007/ ऋषण 13 , 1929

4 In view of above pleadings , my LearBOO Predecessor framed issues which are snywered against thera :

Issues

Findings

by finet party on regular basis. Even be bas not produced anydocument that he signed master call md wis angel smployee of first party. When all these questions remais unanswered question arises whether such a person can be called as a regular comployee of first party ?

No.

1. Whether the workman was in continuous scrvice BS contemplated under the Industrial Disputes Act?

Dees not arise

2. Whether the management complied with the provision marle under the Konkan Railway Corp. Ltd. , (Discipline and Appeal Rules) 1992 ?

2a. Whether management proves thar workinan abandoned the servicew.e.f. 1-7-1995 )

Yes

7.It is fact thathe worked continuously from13-2-92 to 1-7-95 and did not work thereafter. Case ofthe first party on that is second party abandoned the jeb and whereas case of second party is that he wait instructed not to report Da dutyfrom 1-7-95. That means if that is so , definitelyit was injustice on second party as he is samptly asited not to report on duty from 1-7-95. It is matter of record thau. said grievances as alleged by second party are agitated by him first time in 2000 and that too before Goa ALC(C). That fact is not dotied by secred party . So this act of second party and the decision taken in challenging the so called refusal by the ChiefEngineer wie f. 1-7-95 if considered, question arises, how one can wait for such a long period on such plain instruction not to report on duty? Event that question was put to second party in cross bat he unable to explain it stiafiactorily and say that he did not getadvice on that point. All that in my considered view, raising dispute or making grievances does not require any guidance . If at all it required guidance then why in 2000 onlyhe raised it? All those questions remained uns werect

Does not arise

3. Whether the action of the management of ChiefEngineer (South) Konkan Railway Corporation Ltd., Ramagirl " terminating the scazvices of Shri Ravinder ManobarMniye w.e.f. 1-7-95 is legal and justified ?

4. What relief the workman is entitledto ?

Does not arise

Respons

IssueNo. 1:

8.The evidence led does not prove that, beworked continuously as contemplased under Industrial Disputas Act as a employee of fust party. On the contrary first party claim that be was taken on contract basis and he stopped reparting from 1-7.95. That fact is not disputed ic. regarding absentee of the second party from 1-7-95 onwards . When there is such a long abscacs , it reveals that , second party is not doing work continuously as expected under Indurtzial Dispates Act of first party but definitely might have worked on contract basis. Moreover, case of second party of 12 houns shift, payment on daily wages Rs. 30 and bot getting any concession of public holidays and other things reveals that: be did not work continuously as expected unde Industrial Dispunes Act . So answer this issue in the negative.

Isourt No. 2 & 3 :

5. Second party claimed that, he was instructed by Chief Engineer ( South ) not to report on duty from 1-7-95 claiming that he worked with first party from 13-2-92 as a wurkman and having wasch and ward duty in an Oрел Yard Sitore . He also claimed that he was getting salary for his 12 hours work on duly wages of Rs .30. He also claimed that he was not getting public holidays as well as earned leave . He also claimed that he was supposed to wurk for twaive hours . All these things are admitted by first party. Liven case of the first party is that he was taken on contract basis and was paid on daily wages.

9. Case of the second party that , without following provisions of Industrial Disputes Act be was illegally prevented in reporting on duty and action of the Chief Engineer South in instructing second party tot to report on duty w.c.f. J -7-95 is illegal . Whereas case of the first party is that since second party was not regular employee ofit, question of following provision ofIndustrialDisputes Act does not arise. Besides the suo motta skopped in reporting on duty we.f. 1-7-95 . In that scenario question of instructing birm not to report on duty by ChiefEngineer (South) does not arise.

10. Besides in that coumection second party place relisence on his filed rEx-17. ba the croba ho aimits 6. It is admitted position that, second party was mot interviewed and selected by first party. This matter of record that to have watch & ward duty.in an Open Yard Storeand That 100 for 12 hours shift if considered , coupled with say of the second party that, he was not getting public holidays or any other conctasin as regular employee status was given. It is rather clear that , he was engaged on daily wages . Besides case of the second party that , he was to work in a sinift of 12 hours which is not at all applicable to a regular employee also support the case of daily employment of second party. Besides no.appointment onder is produced and even not claimed by second party he was appointed 4868

THE GAZETTE OF INDIA : AUGUST 4 , 2007/ SRAVANA 13 , 1929

that he was nognade permanent. He admit that no such a letter was given by first party. He admits that he was not served by letted about leaving job from 1-7-95 . He admits that , he received wages up to June 1995. He states that though he informed in writing about his refusal on duty from 1-7-95he has no proof of it. Even the admits that he kept silent frond 1-7-95 to August 2000. All this reveals that second party kept silent for 5 years and when he got guidance he rather raised dispute to see what can be achieved . Even witness examined by first party at Ex-20, 21 and 22 does not support case of the second party and throw any light to conclude that second party was prevented in reporting on duty w.e.f. 1-7-95. When second party is not workman of first party question of following provision of Industrial Disputes Act does not wise. Besides when he is not workman of first party question of giring instruction by the Chief Engineer to second puty not to report on duty from 1-7-95 also does not arises . On the contrary silence of second party from 1-7-95 till August 2000 i.e. till he approached the Goa ALC (C) provesthat, he himself estopped in reporting on duty which is noting but abandonment of job by the second party on his own and when he abandoned the job and when be is not regular employee of first party question of giving charge soeet , or notice about absenteeisen or bolding enquiry does not arise. So I conclude that first party was not supposed to conduct enquiry and does not require to follow provision of Industrial Disputes Act for such self decision of second party since second party abandoned thejob . Arconlingly I answer these issues to that effect Ine No. 4:

[PART I-SEC : 3

अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण्म/ श्रम न्यायालय , सं. 11 , मुम्बई के पंचाट ( संदर्भ संख्य 2/52/2003 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 16-7-2007 को प्राप्त हुआ या

रु एल-31011/9/2003- आई आर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 18th July .2007

S.O. 215t. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 2/52/ 2003) of the Central Government Industrial Tribunal -cum- Labour-Court- D , Mumbai as shown in the Amexure in the Industrial Dispute between the Management of Mumbai Port Trust and their wordtman , received by the Central Government on 16-7-2007 .

No. L- 31011 /9/2003 - IR (B - U) | RAJINDER KLIMAR, Desk Officer ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.2, MUMBAI PRESENT: Α.Α.ΙA. A. Lad.PresidingOfficer Reftract No. CGIT-2/52 of2003

Employers in relation to the Management of Mumbai Port Trust

TheChairman,

Mumbai Port Trust,

Fort Bhavan, Ballard Estar,

Mumbai -400-038

10. When second party hills to prove that, he is not employee of first party and was illegally terminated , question of claim made by hin does not require to consider . On the contrary his attitude, his approach and his silence from1-7-95 Dill August, 2000 reveal that he was wit interested in the work and sao moto left. All this reveals that second party abandoned the job and it is not that due to so called inuppruction give by ChiefEngineer (South ) που to report on duty w.e.f. 1-7-95 does not arise to treat as a termination. So I conclude that , second party abandoned thejob.

11. In view of discussion above I conclude that, second party is not catitled for any relief and as such this reference required to be rejected. Hence the order:

ORDER

And

The Workman,

ThePresident Transport and Dock Workers Union P.D'melloBhavan, CarnacBander, Mumbai .

APPEARANCES : Mr. Umesh Nabar, Advocate

For theEmployer

Date:11-06-2007

Reference is rejected. A.A. LAD, PraidingOfficer नई दिल्ली, 18 जुलाई , 2007 काज. 1151 औद्योगिक विवाद अधिनियम , 1947 (1947 को 14 ) की पात्र 17 के अनुसरण में, केन्द्रीय सरकार मुम्बई पोर्ट हुस्ट के तंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच.

For the Warkman : Mr. A. M. Koyande , Advocate Mumbai , dated Sch June, 2007 AWARD PART- I

TheGovernment of India , Ministry of Labour, by its Order No. L- 31011 /9 / 2003 - IR ( B - 15) dated 11-09-2003 in 4869

भारत कम राजपत्र : अगस्त 4, 2007/ वण 13 , 1929

[ भाग अण्क ( i) ]

exercise of the powers conferred by Cause ( d) of sub- section ( 1 ) and sub- section 2 (A ) of Section 10 of the Industrial Dispuse Act, 1947 have referred the following dispute to this Tribunal for adjudication :-

"Whether the action of the management of Mumbai Port Trust in removing from service of Shri Pandharinath Lokunde, Shore Worker, Docks Department MBPT w.c.f. 9-5-2001 is legal and jusrifled? If not, to what relief Shri Pundbarinath Lokande is cotitled to?"

though mumber of warnings were given to improve his attendance, instead of improving in it, he developed it by remaining absent unauthorisedly. He was not having babit to intimate caute behand absenteeism. He was not applying in advance for leave . He did not explain why his absenteeism shonald be regularised when servedwith charge sheet and face enquiry . He did not utilize that opportunity to explain his absenteeism and justify how it is to be regularised ? Since there was no reason to remain absent from duty unauthorisedly, first party by holding enquiry and observing findings given by the Inquiry Officer which has base and grounds rightly concluded to remove second party observing not interested in the work. Since second party.has no justification and since findings given by Inquiry Officer isjust and proper, it is submitted that, action taken by first party on the said basis be maintained observing findings not perveric.

5. In view ofabove pleadings , issues are froned at Ex-17. Out of it Isspes No. I of perversity of findings is treated as preliminary issue which reads as follows alongwith its findings .

Issue

Findings

1. Whether findings perverse? REASONS No

6. Second party Union challenged the removal of the concerned workman dated 9-5-2001 which was taken by first party on the basis of the traquiry conducted aft issuing charge sheet and obataining findings of the Inquiry Officer.According to the Union Inquiry Officer was not having reasons to conclude about absenteeism treating it was unauthorised of the concerned workman Concerned workman submitted all documents which were not considered by Inquiry Officer and without going through those, findings given by Inquiry Officer is perverse .

2. Claim Statement is filed at Ex- 11 by Secretary Transport & Dock Workers ' Union stating that the services of the concerned workman was terminated illegally w.c.f. 9-5-2001. Saidwas challenged before competent authority which did not consider and concerned workman was removed from comployment. Union raised dispine regarding concerned workman's termination stating that chargesheet dated 28-08-2000 served on concerned workman alleging ofhabitual absenteeism was false one. It was alleged that concerned workman remained absent unauthorisedly from 20-05-1998 to 31-12-1998 and thereafter continued to remain absent from 08-01-1999 10 28-08-2000 by which he violated Regulatkn 3 (TA) (ii) and of the B.P.T. Employees ( Conduct ) Regulation 1976 read with Regulation 8 & 12 of the BPT Employees (Classification, Control and Appeal ) Regulation 1976. According to mion concerned worlornant was already penalized for the period of 1994 to 1998. He also applied for regulation of his absence and same was regularised. His absence from 8-1-99 to 12-10-2000 has justification as he was mentally disturbed . He was admitted to Pune hospital and was taking treatroent. Said was explained by him, still show cause notice dated 29-3-99 was issued by first party about his absenteeism proposing the penalty of removal from services which he replied still , said action was confirmed. The appeal filed by hirm was burned down .

7. It is pertinent to note that second party though challenges the perversity of findings decided not to lead evidence hy steping in to witness box and by intimation Ex-18 he inform to that effect,

8. So the evidence before us is the evidence recorded by Inquiry Officer about absenteeism which is filed by the first party in the form of Xerox copies with Ex- 16 to decide whether findings of Inquiry Officer is perverso ?, On the basis of said both argued their respective case.

3. Accordingto bim, though there was evidence before Inquiry Officer about his absenteeism and sufficient grounds to regularise his absenteeism instead be was tot considered for regularisation of his absenteeism and very harsh and disproportionate action ofremoval was taken . So it is prayed that, findings given by Inquiry Officer may declare perverse and punishment of removal be set aside with direction to first party reinstate concerned workman with benefit of backwages and continuity of service.

9. Before us is the point of findings of Inquiry Officer . According to second party findings of Inquiry Officer are perverse. That means second party is not challenging the enquiry and its procedure and fairness of it,By this second party want to challenge the findings of InquiryOfficer only.

4. This is objected by the first party by filing written statement at Ex - 15 stating that , second party is habitual in remaining absent on duty. On mumber of occassions , he remained absent without informing or without getting sanctorning leave which affect the working of the first party. Said workman was working as a Shore worker. Even his service record was not clean and anblemisbed

10. We have to see the evidence placed before Inquiry Officer which we find with Ex- 16 and more 4870

THE GAZETTE OF INDIA: AUGUST4.2007 /SRAVANA 13, 1929

precisely frompage on 21 on wards tili page 30.The perusal of the said findings reveals that concerned workerman has not prayed fot leave in advance . From question No. 2 it reveals that, what ever leave was at the credit of concerned workman were sanctioned to him and remaining portion was bleated unauthorised absence . QuestionNo. 4 reveals that though concerned workman produced medical certificate of Dr. Sarode , Psychiatrist , Pune Hospital froom8-1-99 to 3-11-2000 it was produced at the timeofjoining of duty and no intimation was given about his admission in bospital and making treatment fruth concerned Doctor and absentuism . Even it is brought on record that concemed workman did not try to communicate Or convey the reason behind absenteeism so as to enable first party to adjust his work. From this enquiry it is not pointed out by the second party's advocate which evidence was gonored by the Inquiry Officer observing concernedworkman guilty of the charges of unauthorised absenteeism ? Nothing is pointed out.

PART I-SEC. 3 )] 44/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 16-7-2007 को प्राप्त हुमा था।

[सं. एल-12012/36/2004 - आई. आर. ( थी-1 ) ] राजिन्द्र कुमार , डेस्क अधिकारी NewDelhi . che | Rthe July, 2007

S.O. 2152 -In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No.44/2004) of the Central Goverment Industrial Tribunal -cum- Labour Court- 1 , Mumbai as shown in the Andexure in the Industrial Dispute between the management of Bank of India . ankl their workman , received by the Central Government on 16-7-2007.

(No.L-12012/36/2004- IR (B - II)]

RAJINDER KUMAR, Desk Officer

ANNEXTIRE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL. TRIBUNAL NO.1, MUMBAI

Present: Justice Ghanshyam Dass, PresidingOfficer

Reference No. CGIT -44of 2004

Partles:

Employers in relation to the management of Bank of India

Their Workmen

11. When medical certificate of Pune Docter was produced at the time ofjoining duty for period of 18-1-99 to3-11-2000 and when it was tot intimated to first party, by any means by the concerned workman , about his alleged sickness it reveals that charge of ' unauthorised absenteeism means " proceeded on leave without sanction is proved against concerned workman. It is not pointed our by the concerned workman that, he was in suthorised leave and was punctual in reporting to the first party. Even charge of unauthorized absenteeism is not for once as it is going on for years together which revels that . concerned workman developed suid habit of remaining absent without intimation and sanctioning leave.Even he is unable to point out his grievance before authority vis-a- vis before this Court . So if we consider all this coupled with case made out by both , I conclude that, the findings given hy Inquiry Officer cannot be observed perverse and Lvonclude that findings is not perverse and bence the order .

ORDER

1. Findings of the Inquiry Officer are not perverse .

2.Roth parties to appear in this reference on the point of quantura of punishment.

Date:05406-2007

A.A. LAD, PresidingOfficer i

:नई दिल्ली, 18 जुलाई , 2007

का.आ. $ 152-औद्योगिक विवाद अधिनियम , 1947 (1947 का (4 ) की धार 17 के अनुसरण में, केन्द्रीय सरकार बैंक ऑफ इंडिया के प्रबंधता के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणः श्रम यायालय नं । मुम्बई के पंचाट ( संदर्भ संख्या :

APPEARANCES:

For the Management : Shri LancyD'Souza Shri Ganesham

For theWorka Shri Patel , Advocate.

Siate

: Maharashtra

Mumbai , dated 28th Jume . 2007

AWARD

This is a reference made by the Central Government in exercise of its powers under clause ( d ) of Sub - section | ol Section to of the Industrial Trispures Act , 1947 ( Llae Act for short) vide Government of India , Ministry of Labour , New Delhi Order No. 1-12012 / 36/2004 - IR ( B - IN dated31-5-2004 . The terms of reference given in the schedule are as follows :

"Whether the serion of alee management of Bank of India in awarding the punishment of " removal [भामखेड ( ii) ]

4871

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

"While functioning as officiating Cashier Incharge at Bank's erstwhile Cotton Exchange Branch during May 1998, acts of misconduct , as hereinafter mentioned are alleged to have been committed by you:-

from service with superannuation benefits and without disqualification from futore employment vide order dated 9-12-2002 to Shri S.B. Judhary , Cashier-Clerk is justified, proper and in proportion to the alleged charges of misconduct ? If not, what relief the workman is entitled to and from which date and what other directions are necessary in the matter ?"

2. Mr. S.R. Jadhav ( for short workman ) was issued charge sheet dit . 27-5-2002 which runs as follows :

That, you accepted in clearing 5 cheques crossed account payee and made to the order totalling to Rs . 49.89,362/- Issued by the Customs Authorities to different parties having accounts with Bank of India in the tried partyC/D account of Mis . Vijaya Trading Company, the details ofwhich are furnished hereunder:

Drawn

Cheque No.

Credited On

Sr. No.

Amount of Cheque (Rs.)

Collected in the Account of

Chequein favour of BOI Ajc.

837001

6-5-1998

1. RBI, Fort, Mumbai

3,71.370- SumitaGarments C/DA/C No.40160Vijay TradingCo.

837102

6-5-1998

2 RBL, Fort, Mumbai

-do-

4,21,927- Sri Garments

809090

21-5-1998

20.92.263-

3. RBI, Furt , Mumbai

-do-

Dudar Overseas

839470

22-5-1998

4. RBI, Fort, Mumbai

13,34,843/-

-do-

Sunita Otumeuls

5. RBI , xt, Mumbai

839669

22-5-1998

7,68,958/-

-do-

Destumutb Overseas

proceeds of the account payee crossed cheques / refund orders thus collected in the third party sccount were withdrawn therefrom by such third party. Since the proceeds of the account payee cheque refund orders were collected to third party's account without any mandate from the payee and in gross violation of the Bank's rules /Negotiable Instruments Act , Bank is not entitled for prosection and is liable in respect of the amount ofRs. 49,89,362/- for wrongful conversion .

Your aforesaid, sets if proved , would amountto the gross misconduct of" doing any act prejudicial to the interest of the Bank " within the meaning of para 19.5 (j) of the Bipartite Settlement , which reads as under :

"Doing any act prejudicial to the interest oftheBank or gross negligence involving or likely to involve theBank to serious loss"

3. The domestic enquiry was conductedby Shri S. N. Kanade, Chief Manager (0), Mumbai South Zone as Enquiry Officer. The workman duly participated in the coquiry after pleading not guity. The enquiry resulted in against the workman. The copy of the enquiry report was supplied to the workman. The workmm wat inped a show cause notice for proposed pusislarment and at last the final punishment order du. 9-12-2002 was passed by the Chief Mamagra, Bullion Exchange Branch/DisciplinaryAuthority.

That , in terms of Bank's instructions , although , the facility of collection of cheques in third party ccounts can be selectively extended to certain valped customers ofold standing against their indemnity , such 2 facilitywas expressly forbidden in the case of dividend/ Interest warrants/refunds orders . The 5 cheques accepted by you were issued by the Customs Authorities and were drawn on Reserve Bank of India and were in fact duty draw back refunds issued to the exporters . In sew of this position , you should have been all the more careful while accepting the aforesaid cheques in a thrid party account . Further , you have accepted account payee order cheques for large amounts in the third party account without obtaining indemnity from the account holder . The account in which the choques were collected cannot be termed as an account of valued customer of oid standing , as the account has been opened on 7-11-1997 and had only negligible balance at the end of escin day. Morenver, when crossed cheques are collected in third party accounts , endorsement of the payee is a must , yet in all these 5 cases , you had accepted the cheques in gross violation of Bank's norms , although no endorsement of the payee was appearing on the reverse ofthe cheques. Since the cheques were by way payment of duty draw back and were crossed account payee only However , in gross violation of Bank's Horms , you gor these cheques collected in a third party scount and that too when none of the cheques were having any endorsement on the reverse . That the

4.Tise workman bas challenged the enquiry and also the finding of the Enquiry Officer . He has also challenged the quantum of punishment .

3218 GLA07-9 4872

THE GAZETTE OF INDIA : AUGUST 4, 2007/SRAVANA 13 , 1929

[PART I- S3 ( ) )

5. The workman has filed the affidavit of self in lieu of his examination in chief in support of his case.

"The fact disclosed hereinabove would conclusively go to prove that Shri. V. M. Parkhe the Chief Cashier , Ex . Branch , Shri Sunil B. Jadhav and Officer Shut. D.D.Parmarwere responsible for the present episode.

6.TheBank has filed the affidavit of Shri. S.N. Kanade, EnquiryOfficer in lieu ofhis examination in chief. The parties have filed the documents which have been duly exhibited.

7. I have heard the learned counsel for the partics and gone through the record. The written synopsis filed by the worldman has been perused.

Sincewe apprehend that Mr. V. M. Parkhe (who had alsu came to adverse antice earlier for similar instances ) may try to tamper the recurds , we recommend thut necessary administrative action including suspension may be condisered.

Though there appears to be no actual beneficiaries of the cheques in question and the whereabouts of Mr. Sudhir B.Mandal the proprietor of M/ s . Vijay Trading Co. , is oot Imown , the customs authorities may in future make a claim on the bank and as such there would be a huge loss to the bank due to the acts of the above staff and officer.However, there has been no- claim made so far inspire of lapseof more than 3 years after the said incident " .

11. Mr. S. Vivekanandası vide reportdt. 14-8-2001 vide para 12 reported in the followingmamer 8. The domestic enquiry is just and fair since there is no violation of any principle of natural justice. The workman was issued the charge sheet. He daly participated in the enquiry along with his Defence represamative . The Bank examined witnesses before the Enquiry Officer and all of them were toss -examined on behalf of the workman . The workman was given due opportunity to lead the evidence in defence land be actually led il He was given due opportunity of hearing . The procedure adopted by the EnquiryOfficer appears to be just and fair,Nothing material is brought on record to show that the enquiry was unjust orunfair for any violation of principles ofnatural justice .

9. Now the question arise as to whether the finding of the Enquiry Officer is perverse and whether the punishmentimposed upon the workanan is proper.

10.Admittedly, the preliminary investigation into the matter was madeby Shri . S. V. Vivekanandan, ChiefManager ( Investigation) prior to issuance of charge sheet . Mr. Vivekanandan submitted his raport on 6-6-2001 arod supplementary repon dt . 14-8-2001 . The enquiry took place on the receipt of the notice from Police haspector Shri . 5.5. Mandlik of C. B. I. Special Crime Branch, Belapor, NewMumbai for the allegations.

From the above facts . ir is clear that Mr. V. M. Parkhe and Mr. Sunil B. Jadhav were responsible for accepting A/ c Payer crussed cheques drawn ונח various parties in chird party's account for collection and there was no occasion for the officers in verify the above facts since the respective paying - in -slips were not being sent to the officers as the time of obtaining their signatures in the Outward Memos . None of thepaying- in -slips contain the signature of any of these officers . The officers , in a routine course, ouly verify the twal amount of the Outward Memo with the listing patties and sign the outward Inemos, already signed by the cashier in- charge . Although theOutward Memos , bow collected were signed by various officers as printed out in Amexure "B " we can safely presume that the cheques in question were sent for collection under the cover of the above Outward Memos ,

" It is lieged that 23 A/c Payee & Order crossing cheques, amounting to Rs. 209.36 lakus drawo on Rescrre Bank of India, Fort, Mirabai and issued fayouting vaious parties A/c BNOI by customs authorities towards Duty drawback, men allowed t be encashed fraudulently through 3rd party Current Aực No.40160 of Ms. Vijay Trading Co., (Proprietor Mr. Sochit B. Mandal), Between 2-4-1998 and 29-6-98 la diffocat to the beat's laid down norms and procedure by S /Shri D. U. Parmar, the Dy. Manager (Deposits) V. M. Parkhe, the Chief Cashior and Sunil V. Judhary , the castler of Bank of India, cotton Ex . Branch which may likely to result in financial loss to the Bank",

We enclose the up dated Annexure "B " and copy of paying-in-slips datod 9-2-1998, 11-4-1998,44-1998. 11-2-1998 and27-5-1998 along with copies of ourward memos indicated in the said annexuге, for ready reference . The CBI investigation is still on and we are keeping in touch with Mr. S. S. Mandlik, the CBI 1.0. and recently we have submitted the details of accounts connected with this case wherein the main accused Shri Krishna Kumar Gupta is mostly involved.

Out of the aforesaid 23 Account Payee cheques the workman while posted as Cashier in absence of regular Chief Cashier accepted the five cheques detailed in the charge sheel amounting to Rs . 49.89 lakhs and without crediting with those cheques in the Payee's Account discharged their payment by crediting into the third party account without obtaining any endorsement from the Payee's Account und also the Indemnity Band. After investigation , Shri . S. Vivekanandan has given out the following conclusion vide report dt . 6-6-2001.

12.The aforesaid reports were the basis ofthe enriquiry against the workman . These reports were heavity relied upon by the Enquiry Officer . The evidence which was led before the Enquiry Officer was on the point of proving the documents. The workman never disputed the fact that he was posted as a temporary cashier in absence of the regular Chief Cashier and he accepted the cheques . The facrs mentioned in the charge sheet are not in dispute . The 4873

भारत का राजपत्र अगस्त , 2007/ 13, 1929

[ भाग 11 खण्ड ( ii ) ]

tohe an act prejudicial to the interest of the Bank but its gravity is lowered down a lot in view of the fact that there was no loss not sety likelihood of any loss to the Bank or to anybody. No doubt, dieworkman could be said to be guilty ofgross misconduct for acting prejudicial to the interesi of theBank but its gravity is reduced a lot in view of the aforesaid fact. The Earquiry Officer did not consider this aspect of the matter and similar was the position with the DisciplinaryAuthority who failed to take into consideration the aforesaid act. The departusental appeal preferred by the workroan also resalted in dismissal without caring to sce as to whether there was any loss or likelihood of any loss to theBank. TheCompetentAuthority was impressed by the fact that the choques in question amounted to about Ra. 50 lakhs while there was to loss even of a single penny.

defence of the workman through out before the Enquiry Officer as well as in the instant reference is that therewas practice in the Bank for the last 30 years to credit the account payee cheques of a party to the account of the third party. This factwas clearly reflected by Shri . S. Vivekanandan in his reports and not denied by the Bank in particular. The workman was a temporary cashier . The cheques couldnot be cleared out without the knowledge and signature of the Officers since they were for the amount more than Rs. 50,000/- . The Officers of the Bank were left out deliberately and the poor workman was zunde victim just to save the Officers . The case of the Bank through out is that the cheques in question were issued by Customs Aulborities and were drawn on Reserve Bank of Indin . They werewrongly cleared in third Party Account without obtaining Indemnity from the account holder and the account in which the cheques were collected were not the accounts of new enstomers of old standing. The new endorsement of the Account Payee was a must which was not obtained by the workman and thus be committed grose misconduct under clause 19.5 (1 ) of theBi- partite Settloncat Thus , the Bank was just in passing the finat punishment order viele Section 6( b ) of the Hi -partite Settlement

14. Besides the above, the responsibility of the Officers was not considered it all and they were left out for no reasons. The dereliction ofduty on the part oftheBranch Manager and the other Officerswhose names have clearly come on record went on- punished at all. The cheques could notbe cleared out without the signature ofthe Officer and this fact was not taken into consideration by the Disciplinary Authority. It appears that the wohonan W16 punished to save the Officers of the Bank . The Enquiry Officer was asked specifically on this point to which he staled that he was just required to go into the charge sheet against the workman and not ingainst other Officers. It was anatural reply fer the Enquiry Officer. In fact this was the duty of the General Manager /Zonal Manager to look into the facts in a right perspective to bring to books a ال the guilty Officers including the workonto . The thrusting of the responsibility upon the shoulder of the workman alone is not justifiable. It amourist to discrimination which is no to be tolerated by the law. The Bank was not justified in punishing the warnann with the Qual peaulty of reval from service . No doubt, the workman could not be absolved of the charge totally but a lesser pustiskraczal swould have beru pluper for the Competent Authority in the instant case.

15. Considering the entire record , I conclude that the charge of misconduct was proved against the wockman but the punishment of stanoval from service cannot be wid to be commensurate with the charge of misconduct . The interest ofjusticewould be served if the workman is awarded the parishracat under Section 6(e) i.e. the walotusu is brougin down to ope lower stage in the scale of pay. The gunishmeal awarded to the workman by the competent Authorityis modified accordingly .

16. In view of the above , the pumiskument order is modified accordingly. The workman would notbe entitled tobackwages since there is no evidence on behalf of the worknsan for his non- couployment and the woman was notdisqualified for future employmentby theBank.

17. The reference is dispesed of accordingly.

13. The finding of the Enquiry Officer canot be mid to be perverse since there is no dispute about the facts. The workman through out admined facts which amounted todereliction of duty on the part of the workman whowas posted as temporary Cashier on the fateful dates .His contention that there was a regular practice like this does not appear to be without any basis . It is the admitted position that there was such practice which was duly followedby the workman as well as which fact is clear from the report of Shri. S. Vivekanandan . Similar pusition was reported by the Enquiry Officer in his report but still he placed theburden upon the workman in view of the circular dt.16-12-1996 issued by the Bank . The workman triedto deny the knowledge of the circular but this is of no use. The workman was expected to know the circular of the Bank since he was working as & Cashier in the Bank. According to this circular the workman was expected to obtain endorsement from the hokies of the cheques for credit into the third party and should have also obtained Indemnity Bond. This requirement of the law was there just to protectthe interest of the Bank so that the holder of the cheque may not put any claim against the bank for wrongful encashment .It may be pointed ont that no evidence is available on record about the strict implementation in practice by the aforesaid circular. However, I feel that non- adherence of the aforesaid circular on the part of the workman does not result in any loss to the Bank nor there is any possibility of any loss to the Bank sioce a period of about 10 years has already clapsed and no claim whatsoever is being made as per admission by the bank during the course of argument before me. In these back ground , it cannotbe said that on account of gross negligence of the workman there was likelihood of any loss to the Bank. The act of the workman could be said

JUSTICE GHANSHYAM DASS , PresidingOfficer 4874

THE GAZETTE OF INDIA : AUGUST 4 , 2007 /SRAVANA 13. 1929

[PART 11-SEC . FrüJ ] नई दिल्ली, 18 जुलाई, 2007

का.मा. 2153-औधोगिक विवाद अधिनियम, 1947 ( 1947 का 143 की धारा 17 के अनुसरण में, केन्द्रीय सरकार यूनाईटेड कमर्शियल बैंक के प्रबंधतंत्र के संबद्ध नियोगकों और उनके कर्मकारों मर्की , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , कोलकाता के पंचाट ( संदर्भ संख्या 1/2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-7-2007 को प्राप्त हुआ था।

2. When the case was called on 9-7-2007 попе appeared for either side . Ir appears from record that the representative of the workmen appeared before the Tribunal Jast on 9-8-2006 when he prayed for time to falle statement of claims etc. in this case , but thereafter he did never appeared , or book any step whatsoever in the marier and the case was being adjourned from time to time giving them the opportunity to proceed with the matter . It is thus clear that the workmen are no longer interested to proceed with the matter .

पं एल-12011 /95 /2005 - आई अपर ( बी -1 ) ] राजिन्द्र कुमार , डेस्क अधिकारी

i New Delhi, the 18th July,2007

3. Since the workmen are nut interested to proceed in the present reference , this Tribunal has no other alternative but to dispose of the mater by passing a ' No Dispute Award.

4. A 'No Dispute Award is accordingly passed and the reference is disposed af.

Kolkata

Thared: 11th July.2007 C. P. MISHKA . Presiding Officer नई दिल्ली, 18 बुलाई , 2017

$.0.1.153 .In Pursuance of Section 17 of the ndustrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the award (Ref.No. 1/2006) the Central Goveroment Industrial Tribunal -cung- Labour Court, Kolkata as shown in the Annexure in the Industrial Dispute between the management of United Commercial Bank and their workanen, received by the Central Government or 17-7-2007.

[No. L-12011 /95/2005- IR (B- 113) RAJINDER KUMAR, Desk Officer

ANNEXURS CENTRAL GOVERNMENT INDUSTRIAL ! THUNAL AT KOLKATA

ReferenceNo. 01 of 2006

PARTIES:

का.आ. 2154.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सेन्ट्रल बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों कं बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ अम न्यायालय , अर्नाकुलम के पंचाट ( संदर्भ संख्या 136/2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-7-2007 को प्राप्त हुआ था ।

[सं. एल 12012/143/2002 आई आर ( बी-II ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 18th July, 2007 Employers in relation to the management of United Controercial Bank AND Their workmen

PRESENT:

MR. JUSTICE C. P. MISHRA, Presiding Officer

APPEARANCE:

On behalf of the Managerment : Mr.DK. Para , DC.O. oftheBank

On behalf of the Workmen : Mr. M.Bhowmick,

S.O. 2154. In Puisuance of Section 17 of the Industrial Disputes Act, 1947 114 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 136 / 2006) of the Central Government Industrial Tribunal- Cum- Labour Coun , Emakulom as shown in the Annexure in the lodustrial Dispute between the managensen Central Bank of India and their workmen, received by the Central Government on 17.7-2007 .

[No. 1. 12012/ 143/2002 - IR (B - U RAJINDER KUMAR, Desk Officer

ANNEXTIRE

Committee Member of WestBengal and Sikkim StateCommittee , UCO Bank Employees

Association

State

: West Bengal

Industry

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT ERNAKULAM PRESENT:

: Banking

Dated: 11th July , 2007

AWARD

SHRI PL. NORBERT, B.A..L.L B., Presiding Officer (Wednesday the 11th day of July, 2007/

20thAsadha, 1929) [ .D. 136 of 2006

(1. D. 79/2002 of Inklustrial Tribunal . Kotlami By Older No. 1. -12011 /95/2005 - IR (B- 11) dated 19-12-2005 iand Corrigendum of even number dated 2-3-2006 the Central Governmanent in exercise of its powers under Section 10 ( 1 ) ( d ) and ( 24) of the Industrial Disputes Act. 1947 refpared the following dispute to this Tribunal for adjudication:

Workman Smt. K. Vijayalekshmi , TC No. 37/1745, 5. P. Lane , West Nada. Thiruvananthapu Adv. Shri Manoj R. Nar "Whether the action of the management of United Commercial Bank by not considering Sh . Ashis Kumār Das for promotion froen subordinate cadre toClerical cadre as per clause 4.6 ( 1 ) of promotion policy settlement isjust and legal ? If not , what relief the wasкетел соncerned is cotitled to ?"

Марарстенн The Regional Manager.. Central Bank of India . P.B. No. 98.Gopal Building, ThyvilaRoad. Thiruvananthapuram Adv . Sri V. V. Sidharthan 4875

भारत का राजपत्र अगस्त 4 , 2007 / श्रवण 13 , 1929

[ भाग -खण्ड 3(it) ]

AWARD

This is a reference made by Central Governmunicat ander Section 10( 1)( d ) of Industrial Disputes Act , 1947 for adjudication . The referenor is :

"Whether the action of the management of the Central Bank of India in denying thethe comployment to Sını . K. Vijayalekshmi beyond 1997 is begal and justified ?? If not, what relief the said woricroan in entitled to ?

2. The facts of the case in a nutshell are as follows :

branch. The letter, Ext. WI shows that the Branch Manager was recommending the case of temporary employees of Thiruvananthapuram Branch, Though it is written: " we also Icaro thatMiss. Vijayalekshuni who is engaged on temporary basis at ourRishimangalam Branch has also attained the eligibility norms ...". It is not known what was the Buthority of Branch Manager of Thiruvananthapuram Branch to recommend the case of another Branch . The letter was wriпеп оп 23-8-1993 . Exp . MI series are Musket rolls ofofficers and staff orRishimangalam Branch for the period January, 1987 to December. 1997.

According to the worker , Ms. K. Vijayalekshmi she was engaged as a pono on a temporary basis in a regular pos: of Rishimangalaro Branch of Central Bank of India in 1987. She worked as such continuously till 1997. Though shewas eligible to be absorbed, the management terminated her service without following the procedure under Lodustrial Disputes Act for termination . The case of anotber similarly situated employee was considered by Industrial Tribunal , Alapuzha and an award was passed directing bank to absorb hirn. TheBranch Manager had infurned the Regional Office that the worker had satisfied the eligibility criteria for absorption .Hence the management has in the directed in reinstate the worker and absorb her in service with reinspective effect and pay all consequential benefits .

3.Accordingto the management the worker was never engaged in bank, much less for a continuous period of240 days or 12 calendar roonths in one year. The bank also denies that she was in bank service from 1987 to 1997. It is scato thai she might have been a casual bibouret (tea server) in stuff car.veen . Which is not connected with bank. She has no right either for employment or for absorption in bank. TheBranch Manager's recommendation , even if true , will int confer any right on the worker for absorption . A deusion rendered by Industrial Tribunal . Kollam in another case cannot apply to claimant . The claim is liable to be rejected .

4. In the light of the above contentions the following points arise for consideration :

11 ) Was the worker employed in Bunk?

121 Is the termination legal?

The evidence consists of the orul testimony of WWI and documentary evidence ofExts. W to on the side of worker and MWI and Exts . MI & M2 on the side of management .

5. Point No. ( 1) ;

They show that Shri Neelakantan was the Manager fromDocamber, 1991 to January 1996. Since the workerwanted the Muster Roll of August , 1993 itself, later that was also prochuced on 21-12-2004 by the management, but not seco marked . That shows that Shri Neelakantan was the Branch Manager ofRishimangatam Branch in August . 1993 when Ext. W ] was written . But WWI says that Ext . W ] is signed by Shri Sreenivasan and he was the Assista Regional Manager . But Ext. WI is signed by Branch Manager , Thiruvananthapuram and addressed tu Regional Manager. There is no record to show that Shri Sreenivasan was Assistant Regional Manager . If he hart written in his capacity us Assistant Regional Manager , why has the signed asBranch Manager and in the address of Thiruvamanthapuram Branch? As per Ext . W2 series circulars issued by Regional Manager the Branch Managers were advised on forward details of Lemporary employees who had completed 180 days, showing all particulars shown in the format , to the Regional Office . No such details of the worker is seen sent from Rishianangalam Branchto Regional Office . If at all the Candidature ofMiss . Vijayaleksimni was to he recommended. it was to be done by Branch Manager of kishintanam Branch and not by Branch Manager ofThiruvananthapuram. Nu details are available with regard to uge und qualification ofMiss .Vijayalekshani la kurw whether she was.eligible for selection to the post of peon . A mere recomanendation canno substitule eligability criteria or confer a right on the candidate. The selection process is to be done in the Regional Office and it is for them to ascertain whether eligibility norms are satisfied .Fach Branch willhave to furnish details to Fregionall Office for determining the eligibility . Thatdecision савтич be taken by aBranch Маларет . Moreover the worker (WW1 ) says that Thiruvananthapuram Branch may not have her employment details and it is not the concern of "Гіти какати париram Branch Mamager nasvetain ther employment details and he cannon kpwww ala

6. Ext. Whisa circular issued by union to als various units in which it is mentioned that five of icmporary employees were chosen for the test for selection ofpeon . One of the five is Miss . Vijayalekshmi . None of the office bearers of union is examined to test the correctness of the contents ofExt WS . Therefore Ext . W5 . a document the union , cannot be taken as admission on the part of management regarding eligibility for selection as per temporary employment of Miss .Vijayalekshmi mbunk .

Theworker claims to bave worked in Rishinmangalam Branch of Centrul Bank of India as temporary peon in a regular post from 1987 to 1997 continuously .Bank denies employment of any kind. According to them she would have been a casual worker in staff canteco which is not nun by bank. It is an independent arrangement by staff. Thisis the contention in the written statement and in evidence . To hring bome the contention of the worker there is onlyher testimony and documents Fxts. W 1 and W5 . Ext . Wi is a copy of a letter written by Manager of Thiruvananthapuram Branch to Regional Manager, whereio it is stated that 3 workers of Thiruvananthapuram II Branchand the worker ofRishimongalam Branch have attained the eligibility oonms for absorption . The document is challenged by the management . According to bank the Branch Manager, Thiruvananthapuram had no authority to recommend the orker who claims to have worked in a different

7. No doubt daily wage Registers and P& L Register for the period January to December . 1987 pertaining to casual werkers were called for by the worker as per petiti dated 23-11-2004. The maniigement did not produce them. bur filed an allfidavit saying that they were not traceable and probably destroyed. It is avered in the affidavit that even as per RBI Rules , reixirdis need he preserved for a masistum period of 8 years only. It is mentioned in Ext . W4 4876

THE GAZETTE OF INDIA : AUGUST 4, 2007/ SRAVAΝΑ 13. 1929

PART 11-SLC . M

memorandum of W.P. is Ext M2 Hence the award of Industrial Tribunal in that case cannot be taken into considerition in this case as it has not become final . Morcover the evidence in that cose differs from this case .

reply by Managerment to Assistant Labour Commissioner that normally miscellaneous records are kept only for a period of 5 years. The registers of the period of 1987 is asked for in the year 2004 , after 17 years . Bank cannot he expected to preserve them so long. The industrial dispure itself was raised in 2002. How could the bank foresee the need for dailywager Registers of 1987 in a future litigation of 2002. Naturally those registers in all probability world have been destroyed . The case of management is probable. Therefore no adverse inference can be drawn against the management for non -production of records.

11. The case of ahsorption does not arise in this case as the claimant has not been able to show that she was working in a permanent vacancy , even if she was a casual or temporary worker . Para 53 of Secretary State of Karnataka v. L'madevi ( 2016 ) 48CC 1 has no bearing on the fauts of the present case as she has not been able even 10 show that she is a ' workman " within the definition of 5-2( s ) of 1.D. Act. Besides, the reference is regarding legalely of termination and reinstatement to the post that she claims to have held . But no right whatsoever has accrued ro ber . Therefore she is neither entitled for reinstatement nor for any other relief.

8. Neither in pleadings not in evidence the management bas admitted employment ofworker in hank. let alone continuous employment . Payments to casual or temporary workers should have been made as per vouchers . They are not called for and even ifcalled for , would not be available at this distance of tinse . No co- worker ( any sub- staff ofbankyis examined to support worker's case. There are no records worth reliable to prove employment . Thus The worker has not been able to prove that she was employed ( even if temporary or casual ) in Rishimangalam Branch at any point of time.

12. In the light of the reasons stared abuse I lind that the action of the management in denyang employment to Smt . K. Vijayalekshmi is iegal and justified and she is nor earitled for any relief. No cost . The award will take effect one month after its publication in the Official Gazelle Point No. (2) :

Dictated to the Personal Assistant transcribed anxi Lyped by her, corrected and passed hy me on this the Iith day of July, 2007.

P.L. NORBERT,Presiding Officer

ATTENDIX

Witness for the Worker:

9. The worker says that she was working continuously for a period of ten years and at any rate she has worked continuously for 240 days of 12 calendar months in an year and therefore she cannot be sent away barchanded and the bank is bound to comply with $-25F of 1D.Act . She also claims that she is entitled to be absorbed.

WWI -Smt . K. Vijayaleksami . 111-8-2004. Witness for the Management: MWI-Shri CJ . Dominic, 9-11-2004 .

Exhibits for the Worker:

Wl-Copy of letter duted 23.8.1993 issued by the Br.Manager ofCentral Bank of India in theRegional Office.

W2series Circulars ( 5 Nos .) issued hy Regional ( Iffice ol Central Bank or India .

W3-Certified copy of award dated 19-7-2000 in 1 5098 of I. T.. Alapuzha

10. I have already found that in the wake of denial by bank that she was an employee uf bank it was necessary for theworker in prove the factum of employment and that she has failed in that attempr. lt follows that there can be rfi evidence regarding continuous service for 180 days as menturned in Ext . W'2 series circulars regarding temporary employees or 240 days as required in S.25F read with S- 25B (2 ) ( a ) ( it) of 1.D. Aer to call the alleged terminaciນຕ. illegal . But for Ext .W 1. there is absolutely no evidence regarding employment and continuous service. I have already found why Ext . W I cannot be accepted as proofof employment or continunus service . For brevity repetition is an oided. The burden is on the worker to prove contίπιους service. There is a catena of decisions un that aspect and suffice it to refer to a few of them;

W4-Photostar copy of letter No.TRO: PRS: 2002-03 datecl 29-5-2002 issued by Regional Office ofCentral Bank of Indiato AL.CC )

1. Rainsthan State Ganganagar S. Mills Lad. v. State of Rajasthan ( 2004 ) 8SCC 161 .

2 Marcipal Corpn. Faridabad v. Siri Niiwas 2004) 8SCC 195 .

WS -Photostat copy of strike noticedated 13-8-1991 issued by General Secretary , Central Bank of Indha Employees' Union.

3. H. D.D.A. v Jagmal Singh 2006- M- 1..L.J. 152.

Wh Cerrified cupy of judgement dated 16-6-2004 in OP 30611/2000 of Hon'ble HC. of Kerala.

4. Yeikatti R.M. v. Assistant Executive Enginerr 3006-1-1.11.442.

W7 Certified copy of judgement dated 13-9-2004 in in WA 1344/04 of Han ble HC. ofKerala .

WR- Certified copy of judgement dated 7-9-2004 in WA. 1563/04 of Hon'ble HC of Kerala.

Exhibits for the Management :

M2 series- Certified copies of Musier Rolls of Central Rank of India(46 pages) .

M2- Copy of Mein ( randum of Writ Petition dated 20-6-2005 numbered as WP ( Cx18525/05before Hon'ble HC of Kerala.

Itis needless to say that the worker has not discharged her burden of proving continuous service and employment itself. Exr. W3 award of Industrial Tribunal Alupuzba referred by the worker is regarding another temporary employee and was set aside by Hon'ble Hagh Court by Ext . W6 jurigement and further considered in WritAppeas judgement ( Ext. WT) and termanded the matter to Industrial Tribunal . Thereafter the same Tribunal passed ar award in famous of worker Shri V. Christopher . But again that award is under challenge before High Court and the [भाग 1]--खण्ड 3( ii ) ]

4877

भारत का राजपत्र अगस्त 4,2007/ श्रवण 13 , 1929

AWARD

नई दिल्ली, 18 जुलाई , 2007

This is a reference made by Central Government under Section 10 ( 1) ( d) of Industrial Disputes Act , 1947 for adjudication . The reference is :

का. आ. 2155-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार विजया बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणःश्रम न्यायालय , अर्नाकुलम के पंचाट ( संदर्भ संख्या 278/2006 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17 7-2007 को प्राप्त हुआ था ।

"Whether the action of the management of Vijaya Bank . Bangalore in imposing the punishment of stoppage of two increments permanently on Shri P. Anil Kumar , Clerk vide their order dated 11-4-92 is legal andjustified? If not.to what relief is the workman emitled ? "

[ सं. एल -12012/ 111 /95 - आईआर ( बी-1 ) ] राजिन्द्र कुमार , डेस्क अधिकारी

2.The facts of the case in brief are as follows:-

NewDelhi , the 18th July ,2007

$.0. 2155. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the award (Ref. No.278/2006) of the Central Government Industrial Tribunal cum -Labour Couit . Ernakulam as shown in the Annexure in the Industrial Disputebetween the employers in relation in the management of Vijaya Bank and there workman , which was reecived by the Central Government on 17-7-2007.

No. L- 12012/111 /95- IR (B- IT)]

RAJINDER KUMAR , Desk Officer

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM

Shri P. Anil Kumar was a clerk of Vijaya Bank at Thiruvilla Branch . While so he was charge- sheeted on the allegation that on 1-6-1990 he connived with S/Shri T.S. Ashok Kumar and G.D. Nair ( both clerks ) in attempting to defraud Bank of Baroda , Thiruvalla Branch to the bune of Rs . 1,30,000 . He was suspended from service. An investigation was conducted by two senior officers of the bank. In pursuance to the investigation report , the management conducted a domestic enquiry. In the enquiry the workman was found guilty of the charge of acting prejudicial to the interest of the bank and three increments were stopped with cumulative effect. In appeal filedby the workman the finding of Enquiry Officer was confirmed,but the punishment was modified to stoppage of two increments with cumulative effect . Aggrieved by that an industriat dispute was raised by the workman through union and hence the reference .

PRENENT:

Shri P.L. Norbert, B.A, LER, Presiding Officer

(Tuesday the 3rd day of July . 2007, 12th Ashada 1929)

1.0. 278/2006

(LD. 12/1996 of Labour Court, Ernakulam)

Workman Union : The Joint Secretary Vijaya Bank Workers'Organization 283 , Pycrotts Road,Triplicane Chennai -5

Adv. C. Anil Kumar.

Management -The Assistant General Manager

Vijaya Bank .Head Office

41/2. M.Q. Road

Bangalore-I

Adv. Shri C.P. Sudhakara Prasad

3. Accordingto the union , the Enquiry Officer bad violated the principles of natural justice , no proper opportunity was given to the workman 10 adduce evidence and he was denied opportunity to cross - examioc management witnesses . The Enquiry Officer relied on materials collected behind the back of the workman. The Enquiry Officer had adopted a partisan approach in the enquiry. There are no materials to food the guilt of the workman. TheEnquiry Officer has not properly appreciated the facts and evidence in the enquiry . The punishment imposed is shockingly disproportionate to the charges . There was inordinate delay itt issuing charge- sheet to the woriconan.Hewas not allowed to peruse rellevant documents for submitting reply to the charges . The management was aware that the workman had no rule in the incideru . But the Management wanted to implicate the workman . The Disciplinary Authority has not given personal hearing on the proposed punishment . The appeal was dismissed without proper application of mind by the Appellate Authority .Henee the workman is entitled to be reinstaled with all consequential benefits .

4878

THE GAZETTE OF INDIA AUGUST 4, 2007 /SRAVANA 13. 1924

L'ART TI-SFC. Lin

15-6-1989תס and he worked there till 6-9-1990 . The churge is:

: !

"The action of the CSE in retaining the cheque leaf No. 48424 illegally . passing it on 10 Sri Ashok Kumar , clerk knowingly for depositing the same in the clearing on 1-6-90 by filling in the cheque for Rs . 1.30,000 after forging the signature of the account holder and thereby facilitated the perpetrarion of the attempted fraud by Sri T.5 . Ashuk Kumar, clerk on Bank of Baroda , Tiruvalla branch are. acts prejudicial to the interest of the bank. constituting gross mis - conduct under sub- clause (1) of clause 195 of Chapter XIX of the Bipartire Serlement, 1966."

4.Accordingto the management the charge- sheeted employee instead of submitting a reply to the charge- sheet requested to provide him vertain documents without mentioning their relevance. There is no provision for supplying documenis for the purpose of filing reply to charge-sheet . For the purpose of denying the charges it is not necessary to peruse documents . He was given sufficiem opportunity to defend himself in the enquiry .He was defended by a union representative. He was given opportunity to cross-examine management witnesses and to adduce defence evidence. However he produced unly one document which was marked and he himself gave scalement . The Disciplinary Authority had given alte workman opportunity to make submission on the proposed punishment. However the workman made a written submission. But he did nut turn up for personal hearing. The Enquiry Officer on the basis of the materials on recaed came to a conclusion that the workman was guilty of the charge of acting prejudicial to the interest of the bank and hence the Disciplinary Authority imposed punishment of stoppage of three increments with cumulative effect . The Appellate Authority on proper appreciation of the facts and evidence recorded by the Linquiry Officer , concurred with the findings of the Enquiry Officer. However takiog into consideration the rotality of the circumstances the punishment was reduced to stoppage of two increments with samulative effect . The puoisbroent is proportionate to the gravity of the offence. The attempt to defraud B banking institution cannot be treated lightly . It wilt have demoralizing effect on other employees of the bank anl affects the reputation of the bank . No interference in the matter of punishment or findings, is called for.

5. In the light of the above contentions the following points arise for consideration:

( 1 ) Whether the finding is sustainable?

(2) Whether the punishment is proportionate to the misconduct?!

The proceedings of enquiry . Ext. M2 reveals thut though. the enquiry officer had decided to commence the encuicy on 8-5-1991. the workman had sought an adjournment on the ground that the Defence Representarive ( Joint Secretary of the Union ) was away in Madras . The enquiry was adjourned to 10-5-1991 . Again the workmun sought adjournament on the ground that Dk was unwell . Hence the enquiry was again adjourned 10 10-8-1991 . The enquiry was conducted on that day and on 12-8-1991 . Рыг witnesses were examined and 14 dncuments were unarked as Exts . M 1 to M 14 or the side of management . On the defence side the workman himself gave evidence and one document was marked as Ext . D 1. All the management wilnesses were cruss examined thy the Defence Representative . The proceedings sheets also reveal that copies of documents relied on by the management were given on tume to the workmun. Thus the Enquiry Officer had complied withs the principles of natural justice. The contention of the union that adequate opportunity was not given for defence evidence and for cross - examination of management witnesses , is nom correct. So also the contention of the voion that copies of documents were not furnished to the workman , is equally incorrect Though these contentions were taken up in the claim sratemen when the matten came un for hearing the union did not insist for consideration of the validity of enquiry as a preliminary issue . Hence it is sufficient to say that the Enquiry Officer had followed the procedure for domestic enquiry and complied with the principles of naturaljustice.

The evidence consists of the oral testimony of Enquiry Officer (MWL) and documentary evidence ofExts . MI to M9 on the side of management . It appears that when evidence was adduced before the State Labour Court che enquiry file (Ext . M1 ) did not contain all the documents marked by the Enquiry Officer during enquiry. Hence Fixts .M2 10 9 documents were produced in the Labour Court as additional documents and they were marked.

6. Point No. ( 1 ) :

Shri P. Anil Kumar , the workman in this case. entered service of Vijaya Bank , Thiruvalla Branch

7. The inciden ; alleged happed ar Thiruvalla Branch of Vijaya tank. A hegne bouk having une cheque leaf of Bank of Baroda . Thiruvaila Branch and belonging to Shri G. Radhakrishnan was forgotten and left in the counter of Thiruvalla Branch of Vijaya Rank. while he had heen in Vijaya Bank nm 1.5-6-1989 m deposit a cheque of a co -craployce ofNational Insurance Company where hewas 4879

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[ भाग 1 -स्क्र्ण्ड 3 (ii) ]

working. He carne to know of the loss of the cheque leaf only ur 1 6 1990 when Bank of Baroda informest him that his cheque was presented for encashruent of Rs . 1,30,000 on 1-6-1990. On the same day he was called to VijayaBank by the Branch Manager to ascertain the facts . Thereafter be had givenlixt . M5 statement to the investigating officers of Vijaya Bank . He says in Ext . M5 that he had been to Vijaya Bank, Thiruvalla Branch on 15-6-1989 with cheque No.747450 for Rs.2767 ps . 01 drawn un Bank ofBaroda of Thiruvalla Branch for crediting, 19 the S /B account of Smt . B. Kamalakshiamına with Vijaya Bank, Thiruvalla Branch. At that time he had by oversight left a cheque book havingone cheque leaf in the counter of Vijaya Bank . He had not noticed the mistake until he was informedby Bunk of Baroda on 1-6-1990 that someone had presented his cheque for encashment ofRs . 1,30,000.

D.G. Nairwas not in the seat . It is relevant to note that the incriminating statements of MW3 were not challenged in cross - examination of witness . The cross examination was on some other aspects . Just one question was put to the witness regarding incriminating circumstances and that was . whetherMW3 had beard Shri Anil Kumar insisting Shri D.G. Nair to send the cheque for collection . The statement of MW3 at Shri Ashok Kumar had sent the cheque through MW3 to workman and after 10 minutes the workman had sem the cheque through MW3 to the clearing section is not questioned by the defence. It tantanoudis to admission on the part of the defence . It was argued by the learned counsel for the union that the management was foisting a false case against the workman. However the union was not able to allege any motive on the part of either the Branch Manager or MW3 for implicating the workman in the incident . The allegation that MW3 is an obedient servant of the Branch Manager becomes irrelevant when the defence has nothing to say about the motive of MW2 or MW3 to incriminate the workman . The umon has no case that either Branch Manager or the sub- staff (MW3 ) has any ill- will towards workman or enmity witht him. When there is allegation and evidence regarding the role of Shri Ashok Kumar in the incidem it was not necessary for the management in incriminate the workman . MW 4 is the Assistant Branch Manager of Vijaya Bank, Thiruvalla branch. Accordingto him he came to know about the fraudulent transaction around 12 4.5 р.м. сиь 1-6-1990 wiren be received a call from Bank ofBaroda . He says that the pay- in- slip of cheque for Rs. 2767 ps . 01 dated 15-6-1989 deposited by Shri G. Radhakrishnan is signed by him . Thal means Shri G. Radhakrishnan had been to bank to deposit a cheque for Rs . 2767.01 on 15-6-1989. 11 is true that the Enquiry Officer has found that there is no evidence 10 show that the workman had taken the disputed cheque ( Likt . M8 ) from the counter of clearing section on 15-6-1989 . However the Enquiry Officer found that the cheque was handed over to the workman by Shri Ashok Kumar through MW3 and it was returnedto clearing sectionby the workman through MW3 . On the same day the clearing clerk, D.G. Nair had forwarded the cheque for collection to Bank of Baroda. Thus the evidence and circuristance in the enquiry reveal that Shri G. Radhakrishnan had been to bank on 15-6-1989 and he had by mistake left a cheque leat in the counter . That came into the hands of one of the employees of the bank which was utilized for presenting it and trying tu encash an amount of Rs . 1 30.000 . The attempt to encash the amount failed as the Bank ul Barada on verification of signature refused to clear the cheque and returned at . li was submitted by the learned counsel for the union that The management as well as employees of bank were aware that it was valy a joke of the staff of the bank and mut intended tu defraud anyone . The cheque of the customer 8. Ext . M4 is investigation report of two senior officers , one of whom was examined as MW I before the Lnquiry Officer.The investigation report confirmos the facr that Shui G. Radhakrishnan had been to the Vijaya Bank on 15-6-1989 for the purpose of depositing a cheque for collection and he had left a cheque leaf in the counter of Vijaya Bank . The reports also says that the cheque leal came to the possession of the workman who was the cherk in the clearing section on 15-6-1989 . The chegine was filled up showing the workman as drawee and signature of customer lurged by a co-employee ofworkman . Shri Asbok Kumar and sent it back to the workman through a sub- stall { Shri John Varghese) on 1-6-1990. The workman after perusing the cheque sent it to clearing section through the same sub- staff . Shri D.G. Nair was the clerk in clearing section or: 1-6-1990. He sent it for collection to Bank of Baroda. The cheque was returned as the signuture of the customerwas found forged. MWL , one of the investigating officers reports that the workman was in the clearing section on 15 6 1989 when Shri G. Radhakrishnan had approachesd the bank for depositing the cheque. The details of that cheque of Smt. B. Kamalaksbiamma was entered in the clearing register and clearing scroll of Vijaya Bank, Thiruvalla Branch by the workman . When the workman gave evidence on the defence side he admitted that be was in the clearing section on 15-6-1989 . But he denies having any role in the incident or having come in possession of the cheque in question . MW2 is the Branch Manager ofVijaya Bank. Не same toionow of the alleged transaction after the incident . MW? is JND Collector of Vijaya Bank, Shari Joku Varghese. Accordingto him on 1-6-1990 Shn T.S. Asbük Kunkar had handed over a cheque to him to be entrusted to the worktuan. Shri Anil Kumar- He handed over the cheque to Shri Anil Kumar. After 10 minutes Shri Anil Kumar told him to give the cheque to clearing section. He obeyed the instruction and placed it in the clearing section where Shri D.G. Nain was the clearing clerk . But at that moment Shri

3218 107-タ 4880

PART 1 Sec . 1( 11) THE GAZETTE OF INDIA : AUGUST 4 , 2007 / SRAVANA 13 , 1929

11. In the result, an awand is passed finding that action of the management of Vijaya Bank in imposing the punishment of stoppage of two increments with cumulative effect on Shri P. Anil Kumar , Clerk vide their order dated JJ- 4-92. is legal and justified. The workman is nos entitled for any relief.No cost . The award will take effect one month after its publication in the official Gazette.

(Dictated to the Personal Assistant , transcribed and typed by her corrected and passed by ane on this the 3rd day of July, 2007 ).

FL.NORBERT. Presiding Office APPENTOIX

MW1-

is not a toy for the staff to play. Had there been sufficient amnum in the customer's account and had the clearing clerk of Bank of Baroda by mistake had not verified the signature , the cheque would have been cleared and the transaction would have assumed serious proportions . The hatik employees who know well the value of a cheque and the consequences in case of loss of a cheque by a customer, caunot be heard to say that they were playing ajoke with a blank cheque of a customer. Flad it been a joke they woul have seen that the cheque was alot sent for collectionto another bank , Having sent it for clearance to another hank and having found it unsuccessful , they now turn round and say that it was a joke . But so far as the customer is voncerned lt is nor a juke . The workman canout escape the fact that he was aware that he was the drawee of the cheque, nodoubt written by a co-employee. But when it reached nirn the sinaruld have stopped the cheque and would have retained it with bum either for returning it to the customerDe 1 Bank of Baroda or for entrusting it to his own barak manager . On the other hand it was given to the clearing section for.collection . The fact that signature was put by Shri Ashok Kumar without trying to imitate the signature of customer Shri G. Radhakrishnan , will not lessen the gravity of the misconduct of the workman for having sent it for collection with all the false entries and knowing the tobe false.

Witness fot the Workman/Tinion: Nil . Witness fon the Management: Exhibits for the Workman Lion Nil

Eshubits for the Management .

MI- Domestic enquiry tile .

4 in the light of the above circustistances the findings of the inquiry Officer that the workman was aware of the disputed transaction and instead of retaining it . ne had sent the cheque knowing it to be not yeouane , to the ごcaring section for collection , do not call for any interference

Proceedings of Enquiгу .

10. Point No. (2 ):

M3 Statement of IND Codecor given 10 Branch Maninger on 4-6-1901.

M4- Investigating Report Pages 1 to 30 % .

М5- Алвет | Statement of Shn G. Radhakrishn before investigating officers on15-6-1990 .

M6-- Statement of Shri Sivarakakrishnan , Asst . Branch Manager submitted to investigating officers ол 16 61990.

M7 . Statement of Shri K.M. Mathew . Branch Manager hefore investigating offwers on 16-6-19

48 Cheque dated 1-6-1990.

M- Return memn ofcheque dated 1 6 1990.

The punishment imposed by the Disciplinary Authurity is stoppage of 3 increments with cumulative effect . This was reduced to stoppage of 2 increments with cursilative effect by the Appellare Authority . According is the union the punishment is shockingly disproportounale so the gravity of the charge . The misconduer proved is a major misaluct falling within Clause 19.5 (j ) of Ist Biparise Settlement . The punishment for gross misconduct isprovided in Clause 19.6 of theBipartite Sentlement . It is the discretion of the managerment to impose any of the penishment under clause 19.6. The punishment being not ore falling i's 11-4 of Industrial Disputes Açı it is not live this court to interlere with . The position is supported by the decision in Lawlian Aluminiuro Co. Ltd. v. Labour Court . Rarchi 1991-1- LJ 328 al 333 (Pat D.B.) . Hence in akeration in the matter of punistument can be made by this court. Besides , the punishment cannot be said tobe dispropidaate to the misconduct.

[भाग - खण्ड 3 (ii) ]

नई दिल्ली , 18 जुलाई , 2007

का.मा. 2156.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का ।4 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार देना बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बौच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण श्रम न्यायालय नं. - 2 , मुम्बई के पंचाट ( संदर्भ संख्या 2/112/2005 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 16-7-2007 को प्राप्त हुआ था।

[सं. एल-12012/75/2001 - आई आर ( गौ -1 ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 15th July,2007

5.0. 2156 - In Pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 2/112/ 2005) of the Central Government lodustrial Tribunal-cum- Labour Court, No. 2, Mumbai as shown in the Annexure in the Industrial Dispute between the employer in relation the management of Dena Bank, and their workman, which was neveived by the Central Government on 16-7-2007.

No. L- 12012/75/2001 - IR (B -0 RAJINDER KUMAR, Desk Officer

ANNEXLIRE

REFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MIUMIHAI

PRESENTA.A. Land, PresidingOfficers Reference No. CGIT -2/ 112012005 (Old Ref. CGIT-2/ 63 of2001 )

Employers in relation to the Management of Dena Bank The Regional Manager,

DenaBank DenaCorporate Centre,

Personnel Department C- 10 , B -Block, Bandra Kurla Complex Bandra(F)

Muinbai -400051

AND

Their Workmen

Mr. Sarishkumar S. Nirankari C-5, Satsang Bharati Society GovindNagar, Malad (E) Mumbai-400097.

APPEARANCES

: Ms. Nandini Menon For theEmployer

Advocate

For the Workmen

: Ms. Kunda N. Samanı Advocate

Mumbai , dared 5th June,2007

AWARD

The Government of India, Ministry of Labour, by surtler Nix- 1-12012 /75/2001 [TR (B -T) ] dated 248-5-2001 in exercise of the powers conferred by clause ( d ) of sub- section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 have referred the following dispune to this Tribunal for adjudication:-

"Whether the action of the management of Dena Bank, Mumbai in terminating the services of Shri

4881

भारत का राजपत्र अगस्त 4, 2007 / आवण 13 , 1929

Satishkumar S. Nirankari , Sub-staffw.ef. 31-5-1999 and non- regularisation in Burak's service in Sub-staf cadre is legal and justified? If not, what relief the workman, Sh. Satishkumar S. Nirankari is entitled ?" 2.Claim Statement is filed by concemed workman at Ex-6 justifying the demand made by him regarding his termination dated31-5-1999.

3. Saia is challenged by the firstparty by filing reply Ex- 12justifying its action of tennimation challenged inthe reference.

4. Issues are framed at Ex - 14 and Award was passed by my predecessor on 95-2002which was challenged before Hon'bleBombayHigh Court. Hon'ble Bombay High Court by onder dated 12-7-2005 disposed of Writ Petition No. 2579 of 2002 and sent matter back to this Tribunal for considering the date of entitlement of second party for confirmation in the employment.

5. MeanwhileUnion by purshis Ex-47 informed that concernedworkman is taken in the employment as per the order of Hon'ble Higle Court and as such second party does not want to proceed with the reference . Hence the order.

Onder

VideEx-47 this reference is disposed of. Daked 5-6-2007

A.A. LAD, Presiding Office BEFORE THE CENTRAL GOVERNMENE INDUSTRIAL TRIBUNAL NO. 2, Refarike No. CGM- 2/112 of2005 (Old Ref. CGIT- 2/63 of2001) Between

S.S. Nirankari .

Dena Bank. .... First Pany and Second Party MAY IT PLEASE THE HONBLE TRIBUNAL The Second Party workman , through the Advocate. had addressed a letter to the Advocate for the First Party, inquiring whether the case could by seuled and if the workman could be regularised in the services of the 1st Party w.c.f. 2-5-2001 (date of reference ofdispute to this Hon'ble Tribunal ) ;

By a letter dated 12-4-2007, the first party informed their Advocate that the Bank was agreeable in principal to regularise the services of the 2nd party w.e.f. 2001 (2-5- 2001 ). A copy of the Bank's letter dated 12-4-2007 is annexed hereto.

Ал orter may be passed accordingly .

Sdr-

Mumbai 5-6-2007

(Advocate for the 1st Party) Sd-

Order

(Advocate for the 2nd Party) Sar-

(S. Nirankari ) Workman It is prayed by both & admittedby 2nd party workman. So it is disposed ofaccordingly.

Sdf- (A.A. Lad) PresidingOfficer 5-6-07 4882

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANΑ 13.1929

L'ART Sar3( 2 ) ] नई दिल्ली, 18 जुलाई , 2007

dispue has been transferred to this Tribunal for adjudication and this Tribunal has numbered as I.D.No.258/2004 and issued notices to both parties . In spite of adjourning the case for several hearings , the Petitikiner has not filed Claim Statement . Hence, the Petitioner was called absent and sex ex -parte.

2. The Scheduk mentioned in that order is as follows.- का.आ. 2157.औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 37 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण चैन्नई के पंचाट ( संदर्भ संख्या 258/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 18-7-2007 को प्राप्त हुआ था ।

[सं. एल -12012/445/1998 - आई आर ( बी ) ) अजय कुमार, डेस्क अधिकारी

NewDelhi , the 18th July ,2007

-Whether the demand of the workman Shri M.Velay wthaun , wait list No.698 for restoring the wait list of temporary messengers in the establishment of StateBank of India and consequential appointinent thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled?' S.O. 1157.-10 Pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref . No. 258/ 2004 ) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , received by the Central Covemroedt oo 18-7-2007.

(No. 1. -12012/445/ 1998- IR ( B- 1)미 AJAY KUMAR, Desk Officer

ANNEXURE BEFORE THE CENTRALGOVT.INDUSTRIAL TREBUINAL-ALUM-LABOUR.COURT, CHENNΑΙ

Wednesday, the 31st January, 2007

Present: K. Jayaraman, (Presiding Officer) INDUSTRIAL DISPUTE No. 258/2004

Principal Labour Court CGID No.201 /991

(In the shatter of the dispute for adjudicarion under clause (d) of sub- section ( 1 ) and sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Managerment ofState Bank of India and their workmen ) .

BETWEEN

IParty /Petitioner

Sri M.Velayuthan

AND

The Assistant General Manager,

StateBank of India.

7.0. Chentai .

IIPartyManagemen

ΑΥΤΕARAΝΟΣ:

For the Petitioner

Sri VSLikambaran,

Authorised representative.

M/ s . K.Veeramani .

For the Management :

Advocates

AWARD

The Central Government, Ministry of Labour vide Order No.L- 12012/445 /98 - TR( B - 1 ) dated 10-03-1999 has referred this dispute earlier to the Tamil Nadu Principal LabourCourt ,Chennai and the said Labour Court has taken the dispute on its fite as CGID No.201 /99 and issued notices toboth parties .Even though both sides entered appearance the I Party has pot filed Claim Statement and be has not appeared before the Principal Labour Court . After the constitution of this CGIT- Cum -Labour Coun , the said

3.On behalf of the Respondent memo of objection/ Counter Statement was filed . wherein it is alleged thal reference made by the Govt. for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service. Hence , the question of regular appointment/ absorption does arise. The engagement of Petitioner was not authorisexi . The Petitioner is cstopped from making claint as per Claim Statement . The settlement drawn under provisions of Sectaun 18 ( 1 ) and 18 ( 3 ) of I.D. Act in lieu of provisions of law , retrenchment and implemented hy Respundent Bank . The claim of the Peticioner is not bona fide and made with ulterior motive . The Petitioner conccaled the material facts that he was wait listed as per his longih ni engagement and could not be absorbed as lue wins pusitzuned down in seniority . Duz to the business exigency , the Respondent Bank engaged the temporary emplinyces for performance of duties as messenger and such engagements were prevailing ( the year 1970 onwards. Such of those employees who are lawming permanent absorption and when their case was espousedby State Bank of India Staff Foderarion which resulted in five settlements dated 17-11-87, 1607 84 , 07-10-889-1-91 ax1.30796 The sirid settlements became subject matter of conciliacion proceedings and minutes were drawn under Section 1813 of 1.D. Act . In terms theroof, the Peritioner was considered for permanent appointment 95 perhis eligibility along with similarly placed other teaрикату comployees and the Pethboner was wait listed as candidate No. 698 in waitlist of Zonal Office, Chennai . So far 357 wait listed temporary candidates , out of 744 wuatlisted temporary employees were permanearly appointed by RespondentBank 11 is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as und when it arosc. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed . Under the settlement . employees were categorised as A , B and C Considering their temporary service and subject to other eligibility criteria, under category ( 4 ) the lemporary employees who were engaged for 240 days were to be considered and under category (B ) the temporary employees who have completed 270 days aggregare temporary service in any continuous block of 36 calendar months and under category (C ) the 4883

भारत का राजपत्र अगस्त 4, 2007/श्रावण 13, 1929

[ भाग- खण्ड ( ii) ]

6. Thus , the reference is disposed of accordingly.

(Dictatedto the P.A.. transcribed and typed by him. conected and pronounced by me in the open court on this day the 31st January, 2007.)

K. JAYARAMAN Presiding Officer नई दिल्ली, 18 जुलाई, 2007

कर.आ. 2158-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण चेन्नई के पंचाट ( संदर्भ संख्या 99/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार की 18-7-2007 को प्राप्त हुआ था।

[सं एल -12012/303/ 1998- आई मार (बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 18th July, 2007

S.O. 2158.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947), the Central Coveroment hereby publishes the award (Ref. No. 99/ 2004) of the Central Government bodustrial Tribamal -cum- Labour Courn. Chernai as shown in the Annexure in the Industrial Dispute between the management of State Bank of India, and their workmen, received by the Central Government on 18-7-2007.

No. 1..12012300 / 1998- TR (B -1)}] AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE (ENTRAL GOVERNMENT INDUSTRIAL -CUM- LABOUR COURT, CHENNAI

Wednesday, the 31st January, 2007

PRESENT:

K. Jayaraman, Presiding Officer

Industrial Dispute No. 99/2004

(Principal Labour Court CGFT No.42/99) temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate lemporary service in any continurus block of 36 calendar months were to be considered .As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and die cut offdate was extended upto 31.3.97 for filling up vacancieswhich were to arise upto 31-12-94. The Petitor has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all The aforesaid tempoгary employees were working in leave vacancies and not in regular permanent vacancies . In terms ofaforesaid settlements , oul of 744wait listed candidates, 357 temporary employees were appointed and since the Pestioner was wait listed at 698 he was not appointed. The said settlements were bonafide which were the only workable solution and is binding on the Petitioner. The Petiouner is estopped from questioning the settlements directly or indirectly and bis claim is liable to be rejected. Further, the said scitiements were not questioned by any union so far and the settlements of bank level setilenicots and operated throughout the country. The Tamil Nadu Thucdustrial Fistablishment (Cooferment of Permaneal Status tu Wurkmen ) Act, 1981 does not apply to Respondent Bank and thus Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitione : was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31 12 94 were filled up against the waite list of temporary employees and vacancies for 1995.96 Ja tu be filled up against the wait list drawn for appointmear of daily wages / casual labour . Further, for circle of Chennai wait list ofdaily wages was not finalized and benee nat published and there is only one wait list for the appointment of temporary employees. After the expiry of wait list , the Petitioner hus ou chuim for permanent ahsocptinn . Hence, for all these reasons , the Respondent prays to dismiss the claim with costs .

4 In these circumstances , the points for my consideration are !

( Io the matter of the dispute for adjudication under clause (d) ofsub-section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Thisputes Act, 1947 ( 14 of 1947) , between the Management ofState Bank of India and their workmen) Between:

M.Manivel (deceased)

: Party/Petitioner { i } " Whether the demand of the Petitioner in-Wait Lis: No. 698 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified? (ii) "To what relief the Peritioner is emilled?"

And

PointNo. 1 :

IIParty/Manuganel

TheAssistant General Manager , : StateBank of India ,

Region -I, Trichy.

Арренике:

For the Petitioner :

Sri VS. Ekambaram,

Authorised Representative

For theManagement:

5. When the marter was taken up for enquiry, it is reported by the special representative of the Petitioner that he has no instruction from the Peticioner and he is not sppearing for the Petitioner and hence, the Petirinner was called absent and set exporte. Since the Petitioner neither appeared before this Court nor filed the Claim Statement to substantiate his claim , I find the Petitioner is not interested in pursuing this dispute and bence , he is not entitled to any relief. No C0615.

M/ s . V. Sundar Anandan , Advocates 1584

THE GAZETTE OF INDIA :AUGUST 4, 2007 / SRAVANA 3. 1919

PARI [I-SH .

AWARD

working on acneporary basis in Trichy branch, arulher the advertisement by Respondent/Bank was made regarding casual workers who were reported ro be in service dunng the same perind While the Petitioner was working as sucin. the Manager of the branch informed the Petitioner orally on31-3-97 that his services are not required any more anxt he need not attend the ultice from 1-4-97. Hence , the Petitioner raised a dispute with regard tu his ת ит- employment . Since the concitiation ended in failure , the matter was referred 10 is Tribunal for adjudicarionก :

The Central Government, Ministry of Labour vide Order No. 14-12012/303/98 - IK( B - 1 ) dated 2-2-1999 has referred this dispute carlier to the Tamil Nadu Principal Labour Court . Chemmai and the said Labour Court has taken the dispute on its fite as CGID No. 42/99 and issued noticesin buth parties . But , the Petitioner has not filed the Claim Statement before the Tamil Nadu Principal Labour Court After the constiturion of this CGIT cum Lalxiur Cout, the sald dispute has been transferred to this Tribunal fri adjudication and this Tribunal has mumberet ir as 1.D. No. 99/2004 and notices were issued to both parties and both parties entered appearance and filed their Claim Statement and Counter Stateanent respectively.

2 The Schedule anentioned in that nalet is as tellows.

"Whether the demand of the workman Shri M.Manivel , wait list No.337 for restoring the wait list of Lexority messengers in the establishment of State Itark of India and consequential appointinent thereupon as remporary messenger is justiled? If so, to what relied the said workman is entitled?""

3 The allegations of the Petitioner in the Claiarı Statement are heiefly as follows .

The Penirioner was sponsored by Employment Exchange for the post of sub staff in Class tv cadre in State Bank of Intha and he was given appointment as messenger after an interview and medical examination . He was appointed antemporary basis in Katur ADB branch from 2-1-88. The Petitioner was orally informod that his services West no mare required . The in - employment of the Petitioner and others became subject maner before Supreme Court in the form of Wat Petition filed hy State Bank Employees Union in Writ Petition No. 542/87 which was raken up by the Supreme Court . The Respondent/Bank . in addition to its counter tiled a copy of settleshent under section 18 ( 1 reached between management of State Bank India and All India State Bank of India Staff Federation and the sellement is with regard to absorption of Class TV emporary workroen who were denied employment after 1985.86 wete classified in the settlement was unde consideration unce again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable. the Respondent/Bank brought to the notice of the Petitioner about the imerview to be held through advertisements . The Petitioner also suhenitted Jus application in the prescribed format throu Branch Manager of the Kattur ADB branch . He was called for an interviewby a Committee appointed by Respondent Barit in this regard . But, they have not informed theresult of interview and alsu with regard to appointment Bul . the Petitioner was informed orally to join at the branch where he initiallyworked as a class TV employee. From 2-1-88 the Petitioner has been working as a temporary messenger and some times perfoeming work in other biancties also . Waile

4 As against this , the Respondent in its Count Statement alleged that reference made by the Government for adjudicarion by this Tribunal iaselt istainable . ThePetitioner wils not in continuous service lence . The question of regular appointment/ absorption does not arise . The engagement of Pesitinues was not authorised . The Petationer is estopped from making claim as per Claim: Statement . The settlement drawn ander provisions of Section 18 ( 1 ) and 18031of1 Act in lieu of provisions of law , retrenchiment and implemented by Respondent/Bank. The claim ul' the Petitioner is more and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as perlus length of engagemem and would not be absorbed as he was positioned down in scriurity Dueto the business exigency. the Respondent Bank engaged the temporary employees performance of duties as messenger and sich eagagements were prevailing frorn the year 1970 onwards . Such of those employees who are claiming peпапель absигры and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dared 17-11-57,16-7-88. 7-10 82,9-1-91 and 30-7-96 . The said seillements became subject matter of conciliarion: procatings and minutes were drawn under section 1813; of T.D. Act . In terms therenf. the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other remporary employees and the Theliliuner was woit listed as canclicdate Nu 337 in . wait list of Zonal Ottice, Trichy So fa 212 wait listed temporary candidates, our of fi52 wall listed temporary employees were permanently appointed by Respondent/Bank . 11 is faise to allege that the Petirioner worked as a tempoгаль messenger . The Petitioner was engaged only in leave vacancies as and when't arose . When the Petitinaer having submined to selection process in terms of settlements drawin as per retrenchment provisions referred tu above. canent turn around and claim appointmew , Such of those temporary employees whn were appointed were engaged for more number ofdays and hence, they were appointed. L'nder the seulement , employees were categorised as A. B and C. Considering their temporary service and subject to other eligibility criteria . under caregory ( A) the temporary employees who were engaged for 240 days were 10 be considered and under category (B ) the seтронату employees who have completed 270 days aggregate temporary service ist any continuous block of 36 calendar months und under category ( C ) the temporary employees who have completed 30 days aggregare lemporary service in any calendar year after 1-7-75 er minimum 70 days [भाग ॥ खाण्द 3( ii) ]

भारत का राजपत्र अगस्त 4, 2017 / श्रवण 13 , 1929

4885

vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by thewait lised workmen with ulterior motive . The Respondent /Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies. Hence , the Petirioner prays that an award may be passed in his favour .

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondeat , wherein it is stated all the settlements made by the bank with the State Bankof India Staff ederation were under section 18( 1 ) of the Act and 1104 under section 18 ( 3 ) of the Act . As per recruitment rules oftheResponden Bank, recruitanent of class TV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of Responden/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991. the Petiriones questioned the settlemen dated 27-10 88 and 9-1-91 IL is false in allege that the scatlements are contrary to the rights of the Petitioner. Hence, the Pelutioner prays that an award may he passed in his favour.

7 In these circumstances . the points for my consideration are

( 1 ) "Whether the demand of the Peritioner in Wait List No.337 for restoring the wart list oftemporary messengers in the Responden/ Hank und consequcmal appointment thereupon as temporary messenger is justified?

( ii) "To what relief the Ilitioner is entitled?"

Point No.1 & 2 :-

8. Whenthe matter was pending before this Tribunal at the time of evidence , it is reported that the Petirjoner died and it is posted for taking steps . But , the 1.Rs of the Pentioner have not taken any steps to implead dieme as 1.Rs in this dispute from 6 12-201 . They have also not filed any memo staring when the Thetitioner died or what steps they have taken to impleact them in thisdispute .

aggregate temporary service in any continuous block of36 calendar months were to be considered . As per Clause 7, the length of temporary service was to be considered for seniority in the wait tist and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended upto31-3-97 fror filling up vacancies whichwere ro arese upra 31-12-94. The Petitioner bas no valid end enturceable right for appointment. The Respondent hard implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced , There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent , vacancies . In terins of aforesaid settlements , out of652 wait listed candidates, 2121empoгагу employees were appointed and since the Petitioner was want listed al 337 he was not appointed. The said settlemeals were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped fiuem questioning the settlements direally or indirectly and hus ciaim is liable to be rejected . Further, the said settlements were not questioned by any union so far and the setukmeas ot bank level scalements and operated throughout the country. The Tamil Nadu Industrial Establishment Conferment of Permanent Status to Workmen ) Act , 1981 does not apply to Respondent/Bank and this Tribumal has no jurisdiction to entertain such plea. It is not correct to say that documents and idearity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upło 31-12 94 were filled up against the waited list of temporary empliryees and vacancies for 1995 96 has to be filled up pannd the wait list drawn for appointment of daily wages casual labour. Further, for circle ofChennai wait fist ofdaily wapes was finalized and hence not published and there is only one wait list for the apporotment of temропагу empioyees.After the expiry of wait list , the Petitioner bus no claim liar permanent absorption . Hence, for all these reasons, The Respondent prays to dismiss the clains with cousts.

9. The refence made in Mus dispure is "Wherhe the demand of the workman live restoring the waia list of temporary messenges in the establishment of State Bank of india and consequential appointment thereupon as temporary anessenger is justified and for corisequential appointment thereon as temporary messenger. It is only a personal right claimed by the Petitioner and since it cannot be said that the I.Rs of the Peritioner have no personat right to claim employment in the Respondent/ Management . I find even in the event of reference being answered in favour of the deceased Petitioner , his petitions vanot be allowed . Therefore , find the taim is abatuedand thus , it is dismissed but without any cum.к.

10. Thus the reference is disposed of acconlingly .

(Dictated to the P. A. transcribed and typed by him . corrected and pronounced by me in the open wurt on this day the 31st January , 2007.J

5. In the additional claim statement , The Petitioner contended that he was having heen sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria Set out by Respondent/Bank for selection of candidate for appointmen: in the post of messenger and uther class IV post. Jle was engaged in the messenger post in the subordinase cadre of the Respondent Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services a the Fetitioner us he has acquired the valuable right cashrined in the Constitution of India . In the year 19 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wair listed persons like the Petitionerbe engaged even in menial category, thus, the Respondem/Rank imposed total ban for his future employment Even though there were sufficient number of

K JAYARAMAN. Presiding Officer THE GAZETTE OF INDIA: AUGUST 4,2007 / SRAVANA 13.1925

4385

नई दिल्ली, 18 जुलाई . 2007

the dispute su irs fine as COID No. 1610 ) and issued notices in both parties . Both sides entered appearance and siled ther cisja sistement an: Counter Statement respectively . Alter Uve eonstitution of this CGII Cum -Labo Court . the said dispure has been u.snsferred to this Tribunal for Adjudecation and this Thunal Las Jumbered it as 1.0 No 74/2001.

का.आ. 2159- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का ।4 ) को धारा 17 के अनुरूरण में , केन्द्रीय सरकार स्टेट बैंक अंफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के वीच अनुबंध में निर्दिष्ट' औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधकरण चंन्मई के पंचाट ( संदर्भ संख्या 74/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 18-07-2007 को प्राप्त हुआ था ।

collows 2. The Schedule mentioned in that order is as [सं. एल-12012/107:1998 - आई आर. ( যাঁ -1 ) ] अजय कुमार , डेस्क अधिकारी

NewDelhi . the 18th July.2007

"Whether the deruars of the workanan Sh.1. Мепу , wait list No. 375 ke restoring the wait list of temporary messengers in the establishment of State Bank nd India and consequential appointinent thereupon 25 tempiary messenger is justitied If to what relief The said workman is catulle

3. The allegations of the Petitioner in the Claim Statensent are bretly as follows:-

$.0. 2159.- In pursuance of Section 17 of the Industrial Disputes Act . 1947 114 of 1947 ) , the Central Goversnsiem hereby publishes the Award Ref. No. 74/ 20041 of the Central Govt . Industrial Tribunal cum - Labour Court . Chennai as shown in the Annexure in the Industria! Dispute Ixtween the Management of State Bank of India arid theirworkmen , received by the l'entral Government

1-1021207/1998 - IR (B -11 , AJAY KUMAR , Desk Olle

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM-LABOUR COURT, CHENNAL Wednesday , the 31st January, 2007

PRESENT

K. JAYARAMAN.Presiding Officer Industrial Dispute No.74/2004

11ncipal Labour Court CGED Nu 161/99 ]

he matterof the dispute for adjudication under lause diul sub reciton ( 1 ) and sub - section 244 ) of Section 10 of the Industial Disputes Act , 1947 ( 14 of 1947 ) . between the Management of State Bank of India and their workmen )

BETWEEN

Sri A. Mony

1Party /Petitione AND

The Assistant General Manager . 11 Party / fanageme State BankofTindia . 2.0 . Maiurzi .

APPEARANCE

For the Petitioner

SoV.S. Ekambarm Authorised Represemalive.

Mr. D. Mukunda , Advocates

For the Mariagement

AWARD

The Petitioner was sponsured by Employment Exchange ior y post of sub staff in Class tv cadre in Sute Bank of India and he was given appointment as messenger after an interview and medical examinatiบ ล . He was appointed a temporary basis a : Kuzhithurai branch from 16-03-1984 . The Pentaurier was orally informed than his services were na mere requied . The non-ein וער of the Petitionerand others became subject matter betore Supreme Court inthe form of Writ Petitioner Inleul by State Bank b'rmployees Un in Writ Petition No. 512/17 which was taken up by the Supreme Cour : The Respondεπτέ Bank . in auditina to its courter filed a copy of settlement under section 1801 reached between management of State Barik of India and All India State Bank of India Staff l'ederation and the seulement is with regard to absorption of Class 1 temporary workmen who were Jenied employmentaher 148.5-86 were classified in the sestie mient was under chasideration once again and they classified the workinen under aree categories rammely A. Ватны г. Though the classitication was unreasonable , the Respondent Bank brought tu le notice of the Petitioner about the interview to be held through advertisements The Petitioner aire submitted his application in the prescribed foramat through: Branch Manager of the Kuzhuthurai branch . He was called for an interview by a Commmmittee appuinteil by Respondent / tank in this regard But, they have nut informed the result of imerview and also with regard to appointment . But, the Petitioner was inturned orally to juia as the branchi where he initially worked as a class 1V en: ployee . From sti 0.3 1984, the Pensioner has been working as a temporary messenger ! sume times periormang work in her branches also. While working on tecavary basis an Karhirhurai branch , another advertisement by the Responlent /Bank was made regarding casual workers who were reported to be in service during the same period . While the Peririoner was working as such , the Manager of the branch informed the Petitione : uzally no 31-3-97 that his services are rint required any more and he reed nu attend the office frem :-4-97. Hence , The Petitioner saised a dispute with regard tu his We Central Governnçan , Ministry of Labour vide Order No. 1. - 12012107/ 98-1R (B- 1) dared 05-02 1999 has ferred this dispure earlier to the Tamil Nadu Principal Labour Cin . Cheonai and the said Labour Court has take a 4887

भारत का रावपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

भाग- खण्ड (ii)]

non -employment. Since the conciliation ended in failure, the matter was referred in this Tribunal for adjudication. Though reference was sent to this Tribunal, the reference rammed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Government 10 reconsider the reference and the Petitioner requested the RespondentBank to continue to engage him in service as >btained prior to 31-3-97 and to regularise him in service in Jue course . The Respondent Bank took up an anreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the Settlement The Petitioner was not aware of settlementby which his services and number of days woriced by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore, the Respondent's action in not absorbing bim in regular service is unjust sad illegal . Further , the serbements are repugnant to Section 25G & 251 of the I.D. Act . The ermination of the Petitioner is against the provisions ofpara 522( 4 ) of Sastry Award. Even though the settlement speaks abour three categories only a single wait list hasbeen prepared and the Respondent/Bank has been regularising according to their whims and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits ere , to the temporary workmen which amountsto violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the sancework either by payment of petty cash or by directing him to work under assumed same or by both which amounts untar labour practice . The wait list suffers serious ותוחווחן it us ont hased on surict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Fank with all attendant benefits .

Staff Federation which resulted in five settlements dated 17-11-87,16-07-88,07-10-88,9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under section 18(3) ofLD . Act. bentos thereof, the Petititoner was considerd for permanent appointment as per his eligibility alongwitch similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 375 in waitlist of Zonal Office, Madurai . So far 219 wait listed temporary carkiidates, out of 492 waitlisted temporary employees wo permanently appointed by Respondem/Bank . It is false to allege that the Petitioner worked as a tempoгагу messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terras of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised as A, Band C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of36 calendar months and under category ( C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minirown 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended upto 31-3-97 for fullingup vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforccable right for appointment . The Respondent had implemented the voluntary retirement scherme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlemecals , out of 492 wail listed candidates, 219 temporary employees were appointed and since the Petitioner was wait listed at 375 he was not appointed . The said seulements were bona- Fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and bis claim is liable to be rejected . Further , the said settlements werenot questionerd by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction 10 entertain such plea. It is not correct to saythat documents and identity of Petitioner was verified 1. As against this , the Respondent in ins Counter Statement alleged that reference made by the Ciovernment for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service. Hence, the question of regular appointment / absorption does not arise. The engagensent of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section 181 Jand 18(3 ) of 1.D. Act in lieu of provisions of law, retrenchment and implerented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterius mutive . The Petitioner conocaled the material facts than he was wail listed as per his length of engagement and Sould not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when iibeir case was espnused hy State Bank of India

3218 GUC7-10 THE GAZETTE OF INDIA: AUGUST 4, 2007 /BRAVANA 13. 1924

[PART 1 Sic 3 :

Messengers in the Respondes/ thank and corisequential appointment thereupon as temporary thessenger's justified? "

(ii) To what reliel the Peritioner is entitled

Point Nos . 1 & 2 ;-

8. When the matter was taken up for hearing , it is reported by the represemarive of the Petationer that he is appearing for the l'entanner and the Petitioner also has not appeared before his Court for further proceedings and hence , the Petitioner was called absent and set expaапс .

before the Petitioner was engaged . It is also not correctne say that the Petitioner was discharging the work of permanent messenger .As per settlements , vacancies upta 31-12 94 were filled up against the waited list of temporary employees and vacancies for 1905 96 has to be filled upp against the wait lisa drawo for appointment of daily wages/ Casual labour Further , for circle of Chennai wait list of daily wages was not finaticed and hence not published and there is only one wait last for the appointment of temротату employers . After the expiry of wait tist, the Petitioner has no claim for permanent absorptawo . Hence, for all there reasons , the Respondent prays to dismiss the claim with costs .

9 In this case , the Petitioner alleged that he was appointed by Respondent Bank during 1981 and workeil as a temporary messenger and during the yem 1986-87he was disengaged from service and again he was engagerl as a temporary messenger and all of a sudden . un 31-3-97 he was terminated from service willsoul any notice or notice of compensation . Since he has continuously worked for more than 240 days in a continuous period of 12 calendar monrks , he is entitled to the benefits of Section 25F of the 1.D. Act . But , an evidence was adduced on behall of the Petitioner nor produced any document to establish his contention . The Petirsoner has not appeared before this Embunal to substantiate his claim . As such, I find the allegations of the Petitiones are not established before this Tribunal , llence , I find the l'etitioner is not entitled 10 any relief as claimed hy him . No Costs.

11. Thus, the reference is disposed of accordingly.

( Dictated to the PA transcule and typed by him. correcred and prennenced by me in the apen ה this day the 1151 January 2017 :

K.JAYARAMAN . Presiding Officer नई दिल्ली, 18 लाई . 2007

5. In the additional claim statement , the Petitioner contenderd that he was having been sponsored by employment exchange and having undergone medical examination , the Pentioner has fulfilled the criteria set out by the Responden/Baok for selection of candidate for appointment in the post of messenger and other class TV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Kespondena/Bank is duty bound to regularise the services of the Pentioner as he has acquired the valuable right cashraned in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under ne circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class 1V category , the Respondent Bank denberately delayed in felling up the vacancies by the wait lusted workmen with ulterior motive.The ResponderuBank has been ambitrarily filling up the vacancies with the persons other than wail listed workmen according to their whirts ank! fancies . Hence, the Petitioner prays that an award mzy be passed in his favuur.

का.आ. 2160-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का ( 4 ) की धारा 17 के अनुसरण में, कंन्द्रीय सरकार सेन्ट्रल रेलवे के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बौच, अनुबंध में निर्दिष्ट औध्योगिक विवाद में कंन्द्रीय सरकार औद्योगिक अधिकरण सं. ] मुम्बई के पंचाट ( सदर्भ संख्या 86/2001 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ श्रः

[सं. एल -3: 011/4/2001 आई. आर. ( बी-- ) ] अजय कुमार , डेस्क अधिकारी

NewDelhi . the 18th July ,2007 6. Again , the Petitioner filed a rejnieder to the Counter Statement of the Respondent , wherein it is stared ail the settlements made by the bank with the StateBank .f India StaffFederation were under Section [ B ( 1 ) of the Art and not under section 18 ( 3 ) of the Act . As per recrui rules of the Respondent/ Bank, recruitment of class IV staff in the Respondent /Bank is in accordance with the instructions laid down under endified circulars of the PespondemBank. Even in the Writ Petition before the High Court in W.P. No. 7872. of 1991 , the Petitinner questioned the settlement dated 27-10-88 and 91.91.11 is false to allege that the settlements are contrary to the rights ofthe Petitkiner. Hence , the Petitioner prays thai an award may be passed in inis favour.

7. In these circumstances , the points for my considerajen are-

S.0. 2160 in pursuance of Sectina 17 of the Industrial Disputes Act , 1947 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 86/ 2001 ) of the Central Govt. Industrial Tritsimal - cum - Labour Cour- II . Mumbai as shown in the Annexure in the Industmal Dispute between the Management of Central Railway and their workmen , eceived by the Central Governmenton 18-07 X07,

"Wherber the demand of the Petitioner in Waal List No 375 for restoring the wait list of temporary

No. LA / 4/ 2001 IR ( D - 1 ) AJAY KUMAR, Desk Offiver 4889

भारत का राजपत्र अगस्त 4. 2007 / श्रयण 13 , 1929

[ भाग -खण्ड 3 (1 )

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNALNO2, MUMBAL

PRESENT

A.A. LAD, PresidingOfficer

Reference No. (CIT -2/86 of 2001

Employers in relation to die Management of Central Railway, Mumbai

The Chief Workshop Manager Central Railway Parel, Murobai-400012 .

AND

Their Workmen

'The Secretary , Indian Railway TechnicalStaff

1. Mahavir Yoday Chawl

workshop and stopped work of these workmeo . The members of management were available in relevant time but nobody enquired who were those persons and why they stopped work . Even same thing took place of 22-09-99.Since Management did not interfered or protect the workmen by calling security staff or police, some tonk shelter inside the workshop and some left wurkplace jusa to protect themselves from these goondas who entered unauthorisedly and without knowledge of these workmea . As a result of thau , these workmen unable to panch their entry card vis- a- vis mark their presence.Even they unable to attend their regular work and without considering atl thal , management one sided decided to deduer the wages of the workmen of above dates and shifts by applying principle of the work no pay ' . So it is prayed that, First partyhe directed to pay the wages of these 4000 workmen of Parel workshop and set aside impugned action of the first party with necessary reliefs .

Association Gundaswali Hill , Nagardas Road, Andheri ( E) VMumbai-400069.

APPEARANCES

For theEmployer

: Mr. D.G. Chougade Representative

For the Workmen

: Μ.Α.Β. Mishra Representative

Mumbai ,Dated 26th April, 2007 .

AWARD

The Cloverament of India , Ministry ofLabour by ils Order No. 1-41011 / 14/2001 / IR/ B- 1) did . 20-06-2001 in exercise of the powers confered by clause (d) of sub section ( 1 ) and sub - section 2(A) of Section 10 of the Industrial Disputes Act . 1947 bave referred the following itispute to this Tribunal for adjudication:

"Whether the action of the management of the Chief Workshop Manager, Central Railway, Parel in not paying thewages for 2 days ie. on 21-09-99 and22- (99-99 in respect of around 4000 workers is justified? If not , what relief the workmen are entitled 까

6. This is objected by first party by filing reply ar Fx 90 stating that, since these 4( X) workmen did not work on those relevant periods on those dates , they are not entitled to wages of those days and period. Without any reason they stopped work . Since there was no work , principle st no work no pay' was followed by managemens regarding above period . When there was no work, the workmen involved are not entitled to wages of that period . It is alleged that, memke : of first party did not Iura up on 21-09-99 and 22-09-99. Even they did not punch their card. Even they did nor apr.ly in advance for absentism and intimased their absence . Their act rather supports the said trespassers and without their belp , trespassers cannot enter the workshop and disturb the working of First party There is πο provision το appoint security for the workers or call police for protection when 4000 workmen who were there . What is the necessity to have protection to thenа? Івбаст hese workmen consented the activities of the trespassers allowed then in des it and enjoyed the said disnwhanceby remaining absent from duty or hy not doing work. So it is submitted that, decision taken by it of not giving wages of these days involved in the neferener was just proper and does not require any interference.

7. In view of above pleading my Ld . Predecessor framed issues at Ex. 21 which I answer asfollows:

Findings Yes

1. Whether the action of the management of the Chief Workshop Manager , 2. Chaim starement is filed by the Representative of the workmen at Ex- 8 stating that, the worconen involved in ive reference have been denied their wages by Management of 21-09-1999 of Second shift of general shift und wages of first and second half on 21-01-99 . Management also denied wages of these workmen of all shifts of22.09.99 without any reason or withoum holding enquiry or without obtaining explanation from the concemed workmen .

3. On those days , these workmen were on duty . The principle rollowed by management of ' no work to pay in not giving wages of above dates and period has no logic.

Central Railway, Parci in not paying the wages for two days je. on 21-09-99 arid 22-09-99 in respect обагound 1000 workers is justified .

2. What relief the workinen are entitled to? Does survive

REASONS

4. These workmen are mainly engaged in maintenance and repair of locomotives of various types. Their activities are carried out in shift round the clock .95% of them are of labourer category working with Parel Workshop.

IssacsNos. 1 & 2 :

9. By raising dispute of non payment of wages of 21st Sept. 1990 and 22nd Sept. 199обався 000kmen 5. Accordingto Second Party , on 21-479-99 all these workmen joined in their respective duties in general shifuat about 10.30 hrs . Some unknown persons catered into the 4890

THE GAZETTE OF INDIA: AUGUST 4 , 2007/SRAVANA 13, 1929

by the first party, Second party made out case that, these workmen were not responsible for not doing work since sufficient protection was not given by management nor any of the management's person protected these workmen and guided them in that situation . Whereas stand of the fost party is that , these workomen were responsible for that entire scene which occurred on those days . Even most of them were absent. Who were present did not work . They did not work on those days in the above period and it was just and proper to apply principle of ' no work no рау".

9. To support that Second party examined B. M. Shukla by filing affidavit al Ex -22 .Against that no evidence beld by first party.Written arguments are subrpiled by second party at Ex. 35 with some citations and by first party atEx. 36.

10.The evidence available of Shukla for second party is concerned , filed at Ex- 2, will find be state that , on 21-089-99 the learnt that fact on telephone regarding serious warest in Paret Workshop on account of interruption of trespassers, and when he reached there he met officer of Association as well as visited workshop along with the officers of first party. He noted that , there was fear on the face of the workmen due to temor created by unkow persons . He also noted that, punching booth was closed and there was no atmosphere of normal nature . He noted that, management's persons were not present . He noted that, agitations were going on mainly on entramme gate and they were preventing staff to enter into workshop . Even be noted same position on 22-09-99 . According to him , workmen are not responsible for that. It is suggested thai , there is no access to the outsiders in the workshop. Itwas also suggested that , workmen purposely remained absent on21st and 22nd September, 1999 and did not work .

11. From this evidence it is clear that, none of the concerned workmen is examined by the second party to bring real picture on record. It is alleged that, there দরঃ tense atmosphere and some trespassers entered in the workshop and created tertor. It is to be noted that , about , 4000 workomen were there, it is not pointed out how , some ofthe persons can enter and create tense amosphere when 4000workers were present. It is matter of record that, all these werd of labour category.When labourers are which were in sprength of about 4000 and when it is not proved that , there is no easy access to the outsiders question arise how few people can command over situation against 4000workers ? No just and proper explanation is given by second party by leading evidence . They admit that , punching machine was not working and workmen did not work or attend their work . It means that, there was no work on those days during the above period and even it is not case of second party. When there was no work and when nojust and proper explanation came from second party. when there were in all strength of about 4000, question arises how much they can be believed ?

The case made out by them that, no managementa person came there , advised then , in my considered view

[PART I-St . ( ii ) | that does not arise, as mostly they were workers strength of4000. Some of them mily be supervisor and some of then maybe of different categncy working there . Fact is that, there was no work un those days

12. The question is raised by the second party questioning the action of the first party saying that . without bolding enquiry in enquiring with the workmen how action is sustainable ? In my considered view in peculiar cirraumstance which occurred in two days and that to in particular period of those two days how invite management to question all 40011 and enquire with them and then take action ? Acording 10 me , it was not feasible as well as possible. It is matter of record that , about 4000 workroen were working in that said workshop . It was perind of two days . Work was not done on those two days . Nin any other serious action of discipline was taken . So actruti taken of stopping wages of those days if taken in that scenario , I am of the view that , it was just and proper . Ti is not case of the second party that , partiality was shown hy first party and some were paid on those days and some were not . It is not case that , sonse favour was shown10 some employees and harsh urut extreme action was taken bythe first party against some group

First party simply did not pay wages of those days forwhich they did not work and it was made applicable to all who were on tull on those days.

13. Number of catations referred by second party i.e. copyof order passed in civil appeal No. 5047 of 1998. Citation published in 1990 ( IV ) SCC 744 , & Citation published im 1967 5C: 1269 as well as ciltation published in 1994 SCC(L & S ) page 1.320, Citation published in 1980 SCC ( L & S) page 145 , are un different footing . In civil appeal of 5047 of 1998 , where there was the question of granting special leave and other privileges and it was under consideration . In case of Bank of India Vis . Kelevala and Ors. (1990 TV SCC page 744) there was point of non - payment of wages though workmen were present on work. In our case most of the workmen were absent on those days and that point is not disputed by second party . The citation of Bhagwan Shukla Vs. Union of India published in 1994 SCC (L& S) 1230 is also on different fonting as in that case there was a question of payment of probation which was wrungly fixed .

14. Ifwe consider all these coupled with decision baken by first party, which was taken in general without making any discrimination and partiality , which was universe against all pertaining to that period , I am of the view that, said action does not require any interference . So I answer the above issues to that effect and passes following order:-

ORDER

Reference is rejected with no order as to costs . Date-26-04-2007

A.A. LAD, Presiding Officer 4891

भारत का राजपत्र अगस्त 4, 2007/ আমল 13 , 1929

[ भाग II- खण्ड 3( ii) ]

नई दिल्ली , 19 जुलाई , 2007

what relief the workmen is entitled and from which date?"

2. On being appeared by both the parties the proceeding is proceeded here for disposal being Numberd 11/2006 as per Procedure.

कर, आ. 2161, औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, कंन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोबकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , गुवाहाटी के पंचाट ( संदर्भ संख्या । 1/2006 ) कां प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[८ एल-400: 2/98 /2005 - आई आर (डोयू) ]

सुरेन्द्र सिंह दृस्क अधिकारी

New Delhi, the 19th July, 2007

3.The case of the workman Sri Kulendra Sinha in briefthat he was in Department ofTelecommunication under BSNL and worked against the Post of Master Roll and DailyRated Mazdur and heworked for the development of Net work ofBSNL for the installation work and maintenance of the development work. But the BSNI . retreached himm without assigning any reason and no opportunity was given to him at the Litme of retrenciument . The retrenchment was illegal , arbitrary , unjustified and had in law. He received Du retrenchment Notice in writing and in lieu of Notice the justified amount was not paid to the workman .

S.O. 2161. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Gaviotiment hereby publishers the award ( Ref. No.11/2006, of the Central Goverment industrial Tribunal - cum ( abou Court, Guwahati as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Telecom Department and their workman . which was received by the Central Government un 19-7-2007

4.That the workman proluced the working days list before the authority but the authority paid no heed to it and the Department of Telecommunication introduced a Scheme for regularization of Casual Labours who worked continuously for 240 days . But though he worked the prescribed period of 240 days continuously he was not regularized. The workman claimed that his petiolon is nut Lime barred as he regularly kept contact with the amhority for regularization.

No. L-4001298/2005- IR ( DAU )가

SURENDRA SINGII, Desk Officer

ANNEXUKE

IN THE CENTRAL GOVERNMENT TRIBUNAL- CTM -LABOR COURT, GUWAHATL ASSAM TRESENT

5. That the BSNL authority. Government of Indw. New Delhi vide letter No. 269-10/ 89/STN dated 7-13-89 whereby it is banned the engageamentermployment of casual labourer from 1988. But the petitioner/ claimant was working as daily wage Mardoor in the Telecommunication Department and the paymenin has been made on AGC-17.

Shri H.A.Huzarika, PresidingOfficer, CGIT-C -Labour Coun Guwahati.

Reference Case No. 11 of 2006

6.That for many many years the petitioner / claiman continuously keeping contact with the authority and submitted all documents but it remains without response. That the original work order given by the Sub-Inspector (Phone) Mr. Namar Ali submitted to Labour Commissioner. Inthe matter ofan Industrial Dispute between:一

TheManagement of BSNT., Silchar

Vrs

The Workanan Sri Kulendra Sinha .

APPEARANCES

7. Thut the Department of Telecanumanication, New Delbi introduced a Scheme for regularization of Casual Labourers under the grant of Temporary Status and regularization Scheme ofDOT 1989 who worked 240 days in a year. But authority deprived him from his claim .

Mr. M.K. Jain , Advocate

8. That under Article 38 of the Constitution be is entitled for security of service and promotion and welfare .

For the Workman : Jur the Management : Mr. D. Sur . Advocale . Date of ward:06-07-2007

AWARD

9. Under the present circumstances the authority ought to have been reinstate and regularize the workman as DOT/BSNI . employer. That the Casual Labourer or Daily Wagers and temporary employee cannot be terminated without any reason assigning to them .

10. That the workman claims that be is entitled to have benefits is 25- G, 25 -H of the 1.D. Act , 1947.

Under the circumstances the workman prayed in pass urder 10 reinstate him and regularize him with back wages .

:. The Government of India, Minispy of labour, New Delhi , vide its order No. L-40012/98/2005- IR ( DL ) relicted this Industrial Dispute arose between the employers in relation to theManagement of the BSNI.. Silchar , and their Workman, Sri Kulendra Sinha to adjudicate and to puss an swanton the strength of powers conferred byClause( d) of Sub Section ( 1 ) and Sub-Section (2A) of Section 10 of the Industrial Dispute Act, 1947 ( 14 of 1947 ) on the basis of the following Schedule.

SCHEDULE

11.The case of the Management BSNL, DOT in brief that the workman never worked in service or eтербоутвот in BSNL, DOT. The RSNE, has no liability to regularize the Applicant labour .

Whether the lernand of Shri Kulendra Sinha for reinstatement of his services with the management of BSNL , Silchar . SSA is legal and justified? If so ,to

12. Than the DOT. New Delhi vide No. 269-493- STN II(PT) dated12-02-1999 the authority of allDOT Officers 1892

THE GAZETTE OF INDIA : AUGUST4 , 2007 /SRAVANA 13, 1929

[ PART -SF3

which was received by the Central Government on 19-7-2007.

No. L-40012/97/2005- IR ( 101 ) for engagement of casual labourers as well as die power of all Accounts Officers to pay any such casual tabourer is withdrawn .That the departmental developarent wurks ilze dime through the contractor on contract basis . Thuat so called dispute raised by the Applicant after 15/16 years and is time barred.

SURENDRA SINGH , Desk Officer ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, GUWAHATI, ASSAM

13. That the Management of BSNI . atended the conciliatina meeting heldby the Assistant- Labour Commissioner ( Central ) and pointed out all such poinas and argument about all the points against the workman .

PRESENT

Shri A Hazarika .

Linder the circunssrarses the Management peayeal clismiss the claim of the alleged workman .

PresidingOliceт .

COM- cum - Labour Court

Guwabata.

Reference Case No. 10 of 2006 In the matter of an Industrud Dispurte between:

Της :Management of BSNI, Silenar

Vs. Their Workman Sri Charidra Sekhar Sinha . APPEARANCES

Ter the Workman : Mr. M.K. Jaun , Aduncate

Mr. D. Sur . Adwrate .

For the Massage האח

Date ul Award: 06-407-200 ?

AWARD

1-1. T lave carefully gone through the documents sathmitted by both the parties . The Workman Sri Kulendra Sinha remained absent on the date fixed for evidence and adduced an evidence and the evidence of the Management recordea ex parte. The reason behind is that the learned Advocaate Mc . M.K. Jainrelused to represent the wuckman . The evidence of the Management witness Sri Bijon Behari Nach is reorded ex parte who has categorically stated that he does not know be workman . The Managerment witness is doplined to be cross examined by the Adovrate Mr.M.K. Jaun . Advocate for the workman who was present a: the time of recording the evidence of the Management . Torends ofjustice , in careful scrutiny of the documents in The record I riut dhe workman has not called any document prove that he was engaged by the Management as casual labourer. What I find there is not acceptable evidence for the weakmam tu accept him as casual labourer under BSNI .. The work man is not emitled kr any relief. What I find 18 : läged workman Sri Kulendra Sinha is not entitled lorany resie : Er the result, the clisia of the alleged workman Sti Ku -endra Sinha is acted .

5. Papare the Award and send Casper procedure confidentially and immediately .

HA HAZARIKA. Presiding Offi

.TheGuvemment of India, Minispy of Labour. New Delhi , vide its Order No. 1. -40012 / 7/2005 - IR Tineret this Industrias Dispate arese between the employers in relasinn 1 : The Massagement of the BSNI .. Silchar and their Workmazi. Sri Chandra Sekhar Sinha in adjudicate anul to pass an award in the sength of powers coaferned by Clauseld) of Sub - Secrina : 1 ) and Sub -Secti24)תט ( of Section 10 of the Industrial Thispute Act . 1947: 14 01 1947 in the busis of the following Schedule.

SCHEDULE

नई दिल्ली, । जुलाई, 2007

"Whether the Sand San Chandra Sekhar Sinha for reinsturtecher his services with the management of BSNT . Silchar , SSA is legal and justified? If so what rehel the workman is emitled and Irom which dare?"

का.आ. 2162.-औद्यागिक विन्नवाद अधिनियम, 1947 ( 1947 क । की बारा ] ? ऊं अनुसरण में , कंन्द्रीय सरकार दूर संचार विभागप्रबंधतंत्र के सबद्ध नियोजकों और उनके कर्मकार के में निर्दिष्ट श्रद्यागिक विवाद में कंन्द्रीय सरकार औद्यागिक, अनिलराम श्रम न्यायालय वाहाटी के पंचाट ( संदर्भ संख्या 10/2000 ) एकाशित करती है . जां कंन्द्रीय सरकार को 19-7-2007 को प्रया

2. On being appeared tos both the pursies the proceeding is proxeeded here for disposal wing Numbered 102006 as per Beure

[स. एल 401 297/2005 - आई आर ( ५ ] सुरेन्द्र कुमार, हंस्क अधिकारो

Now Dekhi . the 19th July, 2007

3. The ease of the workman Sn Chandra Sekhar Sinha in brief that he was in Department of Telecomsturnical kin Lnker BSNL and worked against the Hast of Master Roll and Daily Rated Mazdur and he worked for the development of Network of BSNI for the installation work and maintenance of the development work . Bur the BSNL retrenched ham without assigning any reason πιά πο opportunity was given to him at the time of retrenchment, Themetremtument was illegal , arbicans, unjustified and bad in law. He received no retrenchment Notice in writing and in heu of Notice the justified amount was not paid to the workman .

S.O. 2162- in pursuance of Section 17 of the hecustrial Disputes Acl . 1947 ( 14 of 1947) , the Central ereby publishes the award ( Ref. No 10/2006) of the Central Governmeal alustal Tubunal -cum - labour Gurt Guwahati as shown inthe nexure in the Industrial pate between the employers in relation to the Telecom Department aut their workman .

[ भाग II.-सखण्ड ( ii ) ]

4893

भारत की राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

4.That the workman produced the working days list before the authority but the authority paid no heed to it and the Department of Telecommunication introduced a Scheme for regularization of Casual Labours who worked concimously for 240 days. But though he worked the prescribed period of 240 days continuously he was not regularized. The workman claimed that his petition is not time barted as he regularly kept contact with the authority fne regularization .

S. That the BSNL authority, Government of India, New Delhi vide letter No. 269-1089/STN dated 7-11-8 whereby it is banned the engagement/ employment of Casual labourer from 1988. But the petitioner claimant wus working as daily wage Mazloor in the Telecommunication Department and the payment has been made on AGC-17.

6. That for many many years the petitioner / claimant continuously keeping contact with the authority and submitted all documents but it remains without response. That the original work onder given by the Sub- hospector (phone) Mr. Namar Ali submitted Labour Commissioner .

14. On careful scrutiny of the evidence I find the workman Sri Chandra Sekhar Sinha claimed that he was engaged as Casual Labourer for 240 days in a year and as such, he is rotitled for regularization and to acquire the status of Casual Labourer . In Support of his contention he submitted a document Ext. A wherein it is reflected that he worked for 578 days only in 3 years . That ducument as he said is received from one Namar Ali countersigned by one Sub-Divisional Officer . Phones . Silchar Sub-Division .But to prove this document he has not called original document such as, Attendance Register. Payment register . Etc. This document ist authentic on the ground that it has gou so issue No. from the Office. This can now be said document issued on official duty. This roust be proved with official record and as per procedure . Achmittedly he has deposed in in his cross - examination that he was assured for regularization but he is not regularized by the BSNL. But there is no appointment letter or any other document that he has acquired the status of a casual labourer to get benefit under the Scheme of Status of Casual Labourer which goes like this:

"5. Temporary Status

7. That the Department of Telecommunication, New Delhi introduced a Scheme for regularization of Casual Labourers under the grant of Temporary Status and regularization Scheme ofDOT 1989 who worked 240 days 1.7 a year . But authority deprived him from this clвіт.

8. That under Articles 38 of the Constitution be is entitled for security of service and promotion and welfare.

(i) Temporary Status would be conferred on all the casual labourers currently- employed and who havש rendered a continuous service of at least one year . out ofwhich they must have been engaged on work for a period of 240 days (206 days in the case of offices obsrving five- day week ) . Such casual labourers will be designated as Temporary Mazdoor . " 9. Under the present circumstances the authority ought to have been reinstate and regularize the workman as LOT/BSNL.cmployee. That the Casual Laboumer or Daily Wagers and Temporary croployee can not be terminated withow any reason assigningto them.

10. That the woricroan claim that he is entitled to have henerir uts , 25 -G, 25 -H of the 1.D. Act, 1947.

Under the circumstances the workonao prayed to pass order to reinstate him and regularize him with back wages .

Further I find the matter is inordinately delayed and as per Annexure-VI submitted by the Management as the matter is time barred. The Management witness Lachman Lal Bhar deposed thar the workinan is not die workınan of RSNL . Om suzutiny I find the workman Sri Chandra Sekhar Sinha entirely failed in show that he worked as casual labourer unde the BSNL to get benefit under the Scheme. In the result, I find the alleged workman Sri Chandra Sekhar Sinha is not entitled to for any relief. In the result, the claim of the workmao Sn Chundra Sekhur Sinhu is rejected.

15. Prepare the award and send it to the authority concerned as per procedure confidentially and immediately.

11 The case of the Management BSNL, DOT in brief that the workman never worked in service ur employmeal i. BSNL, DOT . The RSNL has no liability to regularized the Applicatit labourer.

H.A. HAZARIKA , Presiding Officer

नई दिल्ली, 19 जुलाई, 2007

12. That the DOT, New Delhi vide No. 269-4/93-STN Π (17) dated 12-2-1999 the authority of all DOTOfficers for engagement of casual labourers as well as the power ofall Accounts Officers to pay any such casual labourer is withdrawn. That the departmental development works are done through the contractor on contract basis . That so called dispute raised by the Applicant after 15/16 years and 15 timebarred .

का.आ. 216.3.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार दूर संचार विभाग के प्रबंधितंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम ऱ्यायालय गुवाहाटी के पंच्चाट ( संदर्भ संख्या 9/2006) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-3-2007 की प्राप्त हुआ था।

13. That the Management of BSNT . auended the conciliation meeting beld by the Assistant Labour Commissioner (Central ) and pointed out all such points and argument about all the points against the workman.

(सवं एल 41 ) 2/96/2/15 आई आर ( डोयू) ।

सुरेन्द्र कुमार , डेस्क आंधकारो Under the circumstances the Managemeru prayed ro mismissthe claim of the allegedworkman.

4804

THE GAZETTE OF INDIA: AUGUST -4 , 2007/ SRAVANA 13.1924

New Delhi, the 19th July ,2007

S.O. 2163- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 9/2006) of the Central Governinent ( khustrial Tribunal - cam- Labour Court, Guwahati as shown in the Annexure in the Industrial Dispute between the employers in relation to the managernent of Telecom Department and their workman , which was received by the Central Government o 197-2007.

PART I-SPL :. 3 ( її) ] under SBNI . and worked against the Post of Master Roll and Daily Rated Mozdur and he worked for the development of Net work of SBNL for the installation work and muintenance of the development work . But the SBNL retrenched him with assigning any reason and no opportunity was given to him at the time of reurenchment . The retrenchment was illegal , arbitrary , unjustitied and bad in luw. He received on retrenclanaetat Notice in writing and in lieu of Nutace the justified amount was nor paid to the wurkman.

[No. 1.40012/96/2005- IR(DL ) J

SURENDRA SINGH, Desk Of

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, GUWAHATI, ASSAM

PRESENT

PresidingOfficer ,

Shri H.A. Hazarika, CGIT- cuni albour Court, Guwahati .

ReferenceCase No. 09 of2006

In the matter of an Inchustrial Dispute hetween:

TheManagement of BSNL, Silchar.

Vrs .

Their Workngan Sri Nurul Amin Laskar .

APPEARANCES

For the Workman

Mr. M.K. Jain, Advocate

Mr. D. Sur Advocate .

For the Managemen

Dute ofAwaкі: 6-7-07

AWARD

1. The Government of lodia . Ministry of Tabоцит , NewDelhi . vide its order No. L- 40012/96/2005 - IR (DU ) referred duis Onchstrial Dispute arose between the employers int relation to the Management of the BSNL, Silchar , and tncir Workman , Sin Nurul Amin Laskar to adjudicate anal tu pass an award on the strength of powers conferredby Case(d) of sub- section ( 1 ) and sub- section (2A) of Section 10sl the industrial Dispute Act . 1947 ( 14 of 1947 ) on the basis of the following Schedule.

SCHEDULE

Whether the demand of Shri Nurul Amin Easkas for reinstatement of his services with the management of BSNL, Sücher . SSA is legal and justified? If su . tu what relief the workman is entitled and from which date?"

2. On being appeared by both the parties the proceeding is proceeded here for disposal being Numbered 9/2006 as per Procedure .

3. Tha case of the workman Sri Nurul Amin Laskar in brief that he was in dequartment of Telecommunication 4. That the workman produced the working days list before the authority but the authority paid no heed en in and the Department of Teleonminunication introduced a Scheme for regularization of Casual Labours who worked continuously for 240 days . But though he worked the prescribed period of 240 days continuously he was no regularized. The workman clained that his petition is not time barred as he regularly kept contact with the authoriry tor regularization .

5. Thut the BSNI. authority , Clovertument of India , New Delhi vide lenter No. 269-10/ 89 / STN dated 7-11-89 whereby it is banned the engagemendemployment of Casual labourer from 1988. But the petitioner /claimant was working as daily wage Mazdırır in the Telecommunication Department and the payment has been made on AGC- 17 .

6 That For many many years the petitioner/claimant continuously keeping contact with the authority and submitted all documents but it remains without response . That the original work order given by the Sub- Inspector ( phone ) Mr. Namar Ali suhmited 10 Labour Commissivoer .

7. That the Department of Telecommunication, New Delha introduced a Scheme for regularization of Cusual Labourers under the grant of Temporary Status and regularization Scheme of DOT 1989 who worked 240 days in a year . But authority deprived him from his clains .

8. Thal under Articles 38 of the Constitution he is entitled for security of service and promotion and welfare .

9. Cader the presem circumstances the authority ought to have been reinstate and regularive the workman as DOT/BSNL employee . That the Casual Labourer or Daily Wagers and temporary employee can not be terminated without any reason assigning to them .

10. Thar the workman claim that he is enticed to have benefit w/ s 25-16 , 25.1 ] [ the 1.D. Act . 1947.

Under the circumstances the workman prayed to pass order to reinstate him and regullarize him with back wages .

11. The case of the Management BSNT. , DOT in brief that the workman never worked in service or employment in BSNL, DOT . The BSNL has no liubility to regularized the Applicant labourer .

12. Tlaat the DOT , New Delhi vide No. 264-4.93 STN 11 (Pt ) 12-2-1999 the aulliority of all DOT Officers for engagement of casual labourers as well as the power ofall 4895

भारत का राजपत्र : अगस्त 4, 2007/ ग्रावण 13 , 1929

नई दिल्ली , 19 जुलाई , 2007

Accounts Officers to pay any such casual labourer is withdrawn . That the departmental development works are done through the contractor on contact basis. That so called dispute mised by the Applicant ther 15/16 years and is zimę harred.

13. That the Management of BSNL attended the conciliation meeting held by the Assistant Labour Commissioner ( Central ) and pointed our all such points and argument about all the points against the workman .

का. भ. 2164.- औगिक विवाद अधिनियम , 1947 (1947 को 14 ) की धान्य 17 के अनुसरण में , केन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणश्रम न्यायालय , गुवाहाटी के पंचाट ( सदेर्भ संख्या 8/2006 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था।

(सं. एल-40012/95/2005 - आई मार ( डीयू) ] Under the circumstances the Management prayed to dismiss the claim of the alleged workman.

सुरेन्द्र कुमार, डेस्क अधिकारी

New Delhi, the 19th July, 2007

S.O. 2164- In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 8/2006) of the Central Government hodustrial Tribunal -cum-Labour Court, Guwahati as shown in the Annexure in the Industrial Dispute between the employers in relation to the munagerment of Telecont Department and their workman. which was received by the Central Government on 19-7-2007.

[No. 1.-40012/95/2005- FR(DU) ) SURENDRA SINGH, Desk Officer

ANNEXLIRE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, GUWAHATI, ASSAM

PRESENT:

14. On careful scrutiny of the evidence I find the workman Sri Nurul Amin Laskar claimed that he was engaged us Casual Labourer for 240 days in a year and as such, be is entitled for regularizacion and to acquire the stams of Casul Labourer . In Support of his contention he submitted & document Ext .A wherein it is reflected thathe worked for 393 days only in 3 years . That docuinent as he said is received from one Namar Ali countersigned by one Sub-Divisional Officer , Phones, Silchar Sub-Division . But to prove this document he has not called any original doucmeat such as, Altendance Register, Payment regisker. ere . This dokment is not authentic on the ground that il nas goi no issue No. from the Officer . This can not be said document issued on official duty . This mustbe proved with official record and as per procedure. Admittedly be has deposed in his cross- examination elsat he was assured fur regularization but he is not regularisert by the BSNL . Ber there is no appointment letter or any other douumedl that he has ucquired the status of a casual labourer to ger benefit iußer the Scherme of Status of Casual Labourer which goes like this:

Shri H.A.Hazarika ,

"5. Temporary Status

PresidingOfficer, СОП - abour Court . Gurwahati

RefereticeCase No. 06 of2006

Inthe matter of an Industrial Dispute between:-

TheManagement of BSNL, Sikhar

Vrs .

(i ) 'Temporary Status wouldbe conferred on all the casual labouters currently crmployed und who have rendered a continuous service of at least one year, out of which they must have been engaged on work For a period of 240 days (206 days in the case of offices observing five- day weck ) . Such casual labourers will be designated as Tempснагу Mazdoor."

Their Workman Sri Gopal Singh

APPEARANCES:

: Mr. M.K. Jain , Advocale

For the Workman

Mr. D. Sur , Advocale .

For the Management :

Date ofAward : 05-07-07

AWARD

Funcher I find the muller is inordinately delayed and as per Annexure -VI submitted by the Managerment as the matter is time barred . The Management witness lachman Lal Bhar deposed that the workman is nut the workman of BSNL .On scrutiny I find theworkman Sri Nurul Ardin Laskar entirely falled to show that he worked as casual labourer unde the LISNL to get benefit under the Scheme . In the result , 1 fund the alleged workman Sti Nurul Amin Iaskar is 1 entitled το for any relief. In the result , the claim of the workman Sri Nurul Amin laskar is rejected.

15. Prepare the award and send it to the authority concerned as per procedure confidentially und immediately.

1. 11 Goverлтета of India , Ministry of Labour . NewDelhi . vide its order No. L-40012/95/ 2005 . TR (DU) referred this hindustrial Dispute arose between the employers in relation to the Management of the BSNL, Silchar, and their Workman . Sri Gomal Sinha to adjudicate und to pass H.A. HAZARIKA, Presiding Officer

3218,680-11 4896

THE GAZETTE OF INDIA AUGU 514RAVANA 13, 1929

PARI 11 SBC.3( 1 ) | an award on the strength of powers conterred by C'lause ( d ) of sub -section ( 1) and Sub - Section ( 2A ) of Sezion 10 af the Industrial Dispute Act, 1947 ( 14 of 1947) on the hissis of The following Schedule.

SCHEDULE

9. Under the presen ! circumstances the authority oughi to have been reinstate and regularize the worknan &&DUT/HSNL.cmployee . That the Casual Labourer or Daily Wingers and termporary employee can not be terminared without any reason assigning to them .

10. That the workman claim that he is entitled n; have benefit Lis 25-G . 25 - H of the 1.D. Ach 1947.

Grfer the circumstances the wordmar. prayed to pass erderen Linstale huur, and regularize him with back wages "Whether the demand of Shri Gopal Sinha for reinstatement of his services with the managlinen BSNT, Silchar, SSA is legal and justified? if so,to what relief the workman is enticted and from which date

2. Un being appeared hy both the parties the proceeding is proceeded here for disposal being, Numbered DR:2006 as per Procedure .

11. The case of the Management BSNL. DOT in brief that the workatan never worked in service or employment In BSNI DOT. The ISSNL has no liability in regularized the Applicant laboures.

12. That the DOT , New Delhi vide No. 269-4/93 -SIN [ ] (Pt) dated 12-02-1999 the authority of all DOT Officers for engagerment of casual labuumers as well as the power of allAccounts Officers to pay any such casual labourers LS withdrawn . Thar tinc departnsçaul development works arc done through the contractor na conract basis . That se cailed dispute raised by the Applicans аблет 1.5: 16 years and is lime barred.

3. The case of the workman Sri Gopal Siniair. brieť that he was in department of Telecommunicalice швет BSNL and worked against the Post of Master Roll aud Daily Rated Mazdur and he worked for the development of Net work of BSNI for the installation work and maintenance of the development wurk. But the BSNL retrenched him without assigning any reason and no opportunity was given ic him at the time of retrenchment . The scarens : hment was legal , arbitrary, unjustified and bad in law , 1le reecited no Frenchoem Nolice in writing and in lieu of Ninh Susie amoum was not paid w the workmar .

13. That the Managemen: of BSNI . anended 11 : conciliation neccting held by the Assistant Labour Coumensioner ( Central and inted at all such points Enid argument about all the points against the workman .

Under the circumstances the Maнaдекпиты pray to dismiss the claine allegoi workman .

4. That the workman prudaced the working days helore the authority hut the authority paid to heed to it and the Department of Telecomumuน คลอด การง Scheme: lor regularization of Casual Labours who worked cumtinuously for 240 days Bur shough he worked the prescribed period of 240 days continuously he was no regularizel . The workman claimed that his pesitior. is nως ime barned as he regularly kept contact with the actioraty tor regulanzation.

5. That the BSN ] . authority, Government of India. Now Delhi vide letter No. 269-10-89 / STN daled 7-11-89 where'ss 1 : is hanned the engagemen.employmen い。 Usual lale em 1985. But the petitioner: claim..nt wasi working aadaly wage Mazdoor in the Telecommun Deparment and payamem has been made un AGC-17.

6. That for Enary many year the peritioram חצ contirarously keeping contact with the authority and submittall documents but it remains withou , responsi hu ! theginal work order given by the S. Inspector phone ! Mr. Namar Ali subtunted to Labo ( mmiss.c..

14. I have carefully gone through the incume submitted by both the parties The Workman Gopal Sirha numed absent on the wa linalor evidence and adduced ne evidence and the evidence of the Managensent recorded Caper'e The reason behind is that the lesional Advikals Mr. M.K. Jain relused a represem the workman . The eivdence of the Management witness Sti Bijon Behari Nath is recursied exparte who has categirically stated that he s not know the burkaarthe Martagena ! welnese s declined us cross examined by the Advocate Mr. M.K. Jain, Advocate for the workman who was presentac time el recording the evidence of the Manages には、 F ends etjustice , o cardul scrutiny of the documents in the record I find the workiner has not called any siacμτει 1 prove that he was engaged by the Management as casa! Labourer . What Limitere is not acceptable evidence For the wurkman to accesimas saurer BSNI .. The wurhonan is not erlitice for any relief . What 1 End the alleged workman Sri Gopal Sinha is not emities for any reliet. In the result. the clairns the alleged workmart Sinha is reject اع

7. Ths the Department of Telecommunication . NewBechi Snroduced a Schere for regularization or Casua Labours under the graat of Tempozars Status an regalar vadon Scherne of DG ) 1989 who worked 241 ulzys na year Hutauthority deprived him from his claim.

15. Prepare the Award ane send itto the autnerily concerned as per procedate xfikacialsy and inmerkanely

H.A. HAZARIKA Presiding Offica S. That unici Arizales 38 of the Construton he is titled torsecurity of service and prometion and welfar 4897 भारत का राजपत्र अगस्त 4 , 2007/ आषण 13 , 1929

भाग 1- सखण्ड (ii) ]

SCHEDULE

नई दिल्ली , 19 जुलाई, 2007

"Whether the demand of Shri Monimoy Simba for reinstatement of his services with the management ofBSNL, Silchar, SSA is legal and justified? If so,10 what relief the workman is entitled and from which dale

2. On being appeared by both the parties the proceeding is proceeded here for disposal being numbere 7/2006 as per Procedure.

का.आ. 2165.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 4 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बंध , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ यम न्यायालय, गुवाहाटी के पंचाट ( संदर्भ संख्स 7/2006) को प्रकाशित करती है. जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था!

[सं. एल-40012/ 94/2005 - मईकार ( डीयू) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 19th July,2007

3. The case of the workman Sri Monimoy Sophe brief that he was in Department of Telecommunicat .. under BSN] . and worked against the Post of Master Ro?! and Daily Rated Mazdoor and he workedfor the development ofNet work ofBSNL for the installation work and maintenance of the development work . But the RSNI . retrenched him without assigning any reason and n opportunity was given to biro at the time of retrenchment . The retrenchment was illegal , arbitrary, unjustified and had in law. He received no retrenchinent Notice in writing, and in lieu of Notices of justified amount was not paid to the workman

S.O. 2165.In pursuance of Section 17 of the Tridustrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 7/2006) the Central Goverment Industrial Tribunal - cum-Labour Court, Guwahati as shown in the Annexure in the Industrial Dispure hetween the management ofTelecomDepartment and their workman, which was received by the Central Govemment -00 19-7-200UT.

[No.1.-40012/94/ 2005- IR (DU) ] SURENDRA SINGH, Desk Officer

ANNEXLIKE

IN THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL-CUM- LABOUR COURT.

GUWAHATI, ASSAM

PRESENT

4. That the workman produced the working days list before the authority but the authority paid no beed toit and the Department of Telecommunication introduced a Scheme for regularization of Casual Labourers who worked continuously for 240 days . But though he worked the prescribed period of 240 days continuously he was ane regularized . The workman claimed that his petition is time barred as he regularly kept contact with the authority forregularization.

SariH. A. HAZARIKA,AZARIKA, PresidingOfficer

CGJT-cum-Labour Cout, Guwahati

Rel. Case No. 7 of2006

In the matter of an Industrial Dispute between:-

TheManagement of BSNL, Silchar

5. That the B.SNI . authority , Govenument of India. New Delhi vide letter No. 269/ 10/ 89/ STN dated 7-11-89 wheroby it is banned the cogagement/ employment of Casual Labourer from 1988. But the petitioner /claimant was working as daily wage Mazdoor in the Telecommunicaitud Departement and the payment has been made on AGC -17.

Vis.

TheirWorkman Sri Monimoy Sinha

APPEARANCES

For the Workman

Mr. M. K. Jain, Advocate .

6. That for many many years the petitioner claiman continuously keeping contact with the authority and submitted all documenis but it remains without response . That the original work order given by the Sub- Inspector (Phone) Mr. Amar Ali submittedto Labour Commissionez.

: Mr. D. Sur ,Advocate

For the Management

Dated ofAward 5-7-07

AWARD

7. That the Departmeal of Telecommunication, New Delhi intrukluced a Scheme for regularization of Casual Labourers under the grant of temporary status und ngularzativo Scheme of DOT 1989 who worked 240 day's in ayear. But authority deprived him from bis claim .

B. That under Article 38 of the Constitution fibe is entitled for security of service and promotion andwelfare.

1. TheGovernment of India, Ministry ofLabour, New Delhi . vide jus order No. L-40012/ 94/2005- IR( DU ) referred This Industrial Dispute arose between the employers in relationto the Management of theBSNL, Silchar and their Workman, Sri Monimoy Sinha o adjudicate and to pass an sward on the strength of powers conferred by Clause (d) of sub - section ( 1 ) and sub- section (2A) of Section 10 of The Industrial Disputes Act, 1947 ( 14 of 1947 ) on the basis

9. Under the present circumstances the authority ought to have been reinstate and regolarize the workınan as DOTBSNL employee . That the Casual Labourer or Daily Wagers andtemporary employee can not be terminated without any reason assigning to them.

4898

THE GAZETTE OF INDIA: AUGUST 4 , 2007 / SKAVANA 13, 1929

10. That the workman claim that he is entitled to havebenefit w's25-G, 25- H of the 1.D. Act.1947.

Under the circumstances the workman prayed an pass urder to reinstate hion and regularize him with back wages .

11. The case of the Management BSNL, DOT in brief that the workman never worked in service or employment in BSNL, DOT. The BSNL, has no liability to regularized the Applicant Labourer .

12. That the DOT New Delhi vide No. 269-4 /93- STN II (Pr) dated 12-02-1999 the authority of all DOT Officers fof engagement of casual labourers as well as the power of all Accounts Officers to pay any such casالمس Jabourer is withdrawn. That the departroental development works are done through the contractor on contract basis. That so called dispute raised by the Applicant after 15/16 years and is time barred .

13. That the Management of BSNL attended the conciliation meeting held by the Assistant Labour Commissioner ( Central ) and pointed out all such points and argument about all the points against the workcrmas .

Under the circumstances the management prayed tu dismiss the claim of the alleged workman .

14. On careful scrutiny of the evidence I find the workman Sri Monimoy Sinha claimed that he was engaged as Casual labourer for 240 days in a year and as such, he is entitled forțegularization and to acquire the status of Casual Labourer. In Support of his contention be subrosted a document Exa . A wherein it is reflected that he worked for 470 days only m 3 years . That document as he said is received troro one. Narendra Ch. Mulakar countersigned by one Sub -Divisional Officer , Phones, Silchar Sub- Division . Hut to prove this document he has not called any original document such as , Attendance Register, Payment Register , etc. This document is not authentic on the ground thar it has got no issue No. from the Office. This can nothe said document issued on official duty. This must be proved with official record and as per procedure. Admittedly he nss deposan in his cross - examination that he was assured Cust 15 years tor regularization but he is not regularizet the BSL . But there is no appointment iener or any elhet document that he has acquired the status of a casa! labourer to get benefit under the Scheme ofStatus ofCasual Labourer which goes like this:

-5. Temporary Status

3) Temporary Stapus would be conferred on all the casual labourers currently employed and who have rendered a continuous service of at least one year , out of which the must have been engaged-on wack-for a period of240days ( 206 days, inthe case of offices observing five- day week) . Such casual labourers will be designated as Temporary Mazdoor." Further i find the patter is inordinately delayed and as per Senexure VI submitted by the Management as the

PART 11--SLC 300) matter is timebarred The Management witness Lachman Lal Bhar deposed that the workman is now the workman of BSNL . On scrutiny I find the workman Sri Monimoy Sinha entirely failed to show that he worked as casual labourer under the BSNL to get benefit under the Scheme . In the result. I find the allged workman Sri Munitioy Siab isk entitled to for any relief . In the result the chint of the workman Sri Monimoy Sinha is rejected.

IS. Prepare the award and send it to the authority concerned as per procedure contidestially and immediately . H.A HAZARIKA. Presiding Officer नई दिरुस्री, 19 जुलाई, 2007

का, आ. 2166 --अद्यागिक 'बवाद अधिनियम, 947 ( 1947 की 14 ) को धारा । ? के अनुसरण में , कैन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के नियोजकों और उनके कर्मकारों के बोच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में कंन्द्रीय सरकार औद्योगिक अधिकरण श्रम न्यायालय, गुवाहाटी के पंचाट (संदर्भ संख्या 6/2006 ) को प्रकाशित करती है , जो ऊंन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ. था ।

[सं. एत 200: 2/ 93-2005- आई आर डाँवुः । सुरेन्द्र सिंह, डेक अधिकारी New Delhi, the 19th July,2007

S.O. 2166. In pursuance of Section 17 of the Industrial Disputes Act, 1947 114 of 1947 ) , the Cematral Goverment bereby publishes the award Ref . No. 6/2006) ut the Central Goweramom Industriai Tribunal -cum- Labour Court Guwahati as shown in rac Annexure it the Industrial Disgure belwers the employers in relamon to the marigement al Telocom Dieрerment and their workman , which was received by the Central Goочтитета си. 19-7-2007.

[No. 1.-4001293/2005 TRUU ] SURENDRA SINGH Desk Officer ANNEXURE IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT . GUWAHATI ,ASSAM PRESENT

Shri H.A. Hazarika, Presiding Officer CGIT-cum-Labour Court,Gurwahad Ref. Case No. &of2006 In the inatrer of an Industrial Prispure herween: TheManagement of BSNL , Silchar Vrx . TherWorkman Sri Babui med Laskar APPEARANCES Mr. M.K. Jain . Advocate .

For the Workman

: Mi. 13. 5 , n . Advocare For The Managemen

Date of Award 5-7-(17 4899

भारत का सचपत्र व्अगस्त 4, 2007 / श्रवण 13 , 1929

[ भाग ।। खष्ठ 3( ii) ]

AWARD

Labourers under the grant of temporary status and regularization Scheme of DOT 1989 whoworked 240 days in ayear.But anthority deprived him from his claim.

8. That under Articles 38 of the Constitution he is entitled for security of service and promotion and welfare.

1. TheGovernment of India, Ministry of Labour, New Delhi ,vide itaOnter No. L-40012/93/2005 -IR( DU) refred this Industrial Dispute arese between the employers in relation to the Management of the BSNT, Silichar, and their Workman, Sri Babul Ahmed Laskar to adjudicate and to pass an award on the strength of powers conferred by Clause (d) of Sub-section ( 1 ) and Sub- seciton (2A) of Section 10 ofthe Industrial Disputes Act, 1947 (14 of1947) on the basis of the following Schedule.

9. Under the present circumstances the authority ought to have been reinstate and regularize the workman as DOT/BSNLemployee. That the Casual Labourer orDaily Wagers and tempurry employee can not be terminated without any reason assigning to them.

SCHEDULE

10. That the workman claim that he is entitled to have benefit n/ a 25-G, 25-H of the I.D.Act, 1947.

Under the circumstances the workman prayed to pass order to reinstate him and regularize him with back wages.

"Whether the demand of Shri Babul Almed Laskar for reinstatement of this services with the management! ofBSNL, Silchar, SSA is legal and justified? Ifso, to what relief the workman is cotitled and from which date?"

11. The case of theManagement BSNL, DOT in brief that the workman never worked in service or employment in BSNL, DOT. The BSNL has no liability to regularized the Applicant labourer.

2. On being appeared by both the parties the proceedings is proceeded here for disposal being numbered 6/2006 нь рег procedure.

12. That the DOT, New Delhi vide No. 269-4/93- STN II (PL) dated 12-02-1999 the mathority of DOT Officers for engagement of casual labourers as well as the power of all Accounts Officers to pay any such casual labourer is withdrawn . That the departmental development works are done through the contractor on contract basis. That so called dispute raised by the Applicant after 15/16 years and is time barred

3. The case ofthe workman Sri Babul Ahmed Laskar , ir. brief that he was in Department of Telecommunication under BSNL and worked against tise Post of Master Roll and Daily Rated Mazdur and he worked for the development of net work of BSNL for the installation work and maintenance of the development work. But the BSNL rewenched him without assigning any reason and do opportunity was given to bim at the time of retrensment The retrenchment was illegal, arbitrary , unjustified andbad in law. He reuzived no retrenclument Notice in writing and in lieu ofNotices of justified amount was not paid عطاما worivomm.

13. That the Management of BSNT . attended the conciliation meeting held by the Assistant Labour Commissioner (Central) and pointed out all such points and argument about all the points against the workman .

Under the circumstances the management prayedte dismiss the claim of the alleged workumam.

4. That the workman produced the working days list before the authority but the authority paid no heed to it and the Department of Telecommunication introduced a Scheure for regularization of Casual Labourers who worked continuously for 240 days . But though he worked the prescribed period of 240 days contimsously he was not regularized. The workant claimed that his petition is not time barred as the regularly kept contact with the authority forregularization.

5. That the BSNL authority, Government of badia, NowDelhi vide letter No. 269-10/89/STN dased 7-11-89 whereby it is banued the cagagement /caployment of Cusual labourer from 1988. But the petitionerichaiamant was working as daily wage Mazdoor in the Telecommunication Department and the payment has been made on AGC -17.

6. That for manymany years the petitioner/ claimant continuously keeping contact with the authority and submitted all documeals but it remains without response. That the original work order given by the Sub - Laspector (phone) Mt. Namur All submitted to Labour Commissioner.

14. Perused the evidence -in-Affidavit filed by the workaan Sri Babul Ahmed Lashkar . He claimed at be was engaged as casual labourer for 240 days in a year and as per Scheme he is entitled to be regularized . That he is retrenched without any reason and paid no wages In Beu ofnotice. That his case is not time burred as he approached the management from time to time for relief and the managerment assured blm to regularize or to provide relief but I have not found that the worksman worked continnously for 240 days in a year to get relief under the scheme .No original documents were called, no attendance Register is called to prove bis claim . A certificate is given by the workom in which it is reflected that he worked in 1992- 128 days, in 1993-238 days. This document is also not proved as per procedure.No Office issue No, is given and as it is a document related to financial matter it must be proved by calling the related financial documents. Further I find there is no evidence of creation ofPost ofCasual Labourer. There is no evidence of engagement or appointment letter. No stiendance Register is calledto 7. That the Department of Telecommmication,New Delhi introduced a Scheme for regularization of Casual 4900

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANA 13. 1929

prove bis claim . Further he is not within the Scheme as under:

"5 Tesuporary Status

Temporary Status would be conferred on all the casual Labourers currently employed and who have rendered a continuous service of al least one year, out of which they must have been engaged on work for a period of 240 days (206 days in the case of offices observing five. day week) . Such casual labourers will be designated as Temporary Mazdoor . " I iso found that the case is time barred as per Annexure-V1 of theManagement.

[PART I- SFL. 3 (ii );

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, GUWAHATI, ASSAM PRESENT:

ShriH.A. HAZARIKA, PresidingOfficer CGIT- Labour Court, Guwahati Ref. Case No. 5 of2006

In the matter of an Industrial Dispute between .

The Management ofBSNL, Silchar

Vrs.

Their Workman Sri Ashok Kumar Paul .

APPEARANCES

For the Workton

15. It is pertinent to note here that Sri Lachmal Bal Bhar who is Sub- Divisional Engineer , Vigilance . BSNL. Silchar categorically stated that he does not know the workman. He was cross - examined as regards some documents but what I find the workman could not prove thathe is within the ambit of the Scheme and that he worked 240 days continuously in a year.

16. Linder the above facts and circumstances what find the alleged workman Sri Babul Ahmed Laskar is not entitled for any relief and his claim is rejected.

17. Prepare the award and send it to the concerned authority as por procedure confidentially and iromediately .

H. A. HAZARIKA, Presiding Officer नई दिल्ली, 19 जुलाई , 2007

का.आ. 2167.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 143 की धारा 17 के अनुसरण में, केन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बांच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ अन न्यायालय , गुवाहाटी के पंचाट ( मंदर्भ संख्या 5/2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था :

[स्टंट एल -40012/86/2005- आई मार ( डी.यू. ) ] सुरेन्द्र सिंह, डेस्कअधिकारी New Delhi , the 19th July, 2007

S.O. 2167.in pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No.5/2006) of theCentral Goverment Industrial Tribunal-curh-Labour Court, Guwahati as shown in the Annexure in the Industrial Dispute between the employers in relation to the roanagerment of Telecom Department and their worksham , which was received by the Central Government un 19-7-2007.

[No L-40012/86/2005- IR( DU) SURENDRA SINGH, Desk Officer

:Mr. M.K. Jain , Advocate .

: Mr. D. Sur . Advocate For the Management

Dared of Award 5-7-07

AWARD

1. TheGovemmen of ladia , Ministry of labour. New Delbi . vide its order No. [ ..40012/66/2005 - IR (DL) referred this Industrial Dispute arose between the employers in relationto the Management of the BSNL, Silchar . and their Workman , Sri Ashok Kumar Paul to adjudicate andto pass an award on the strength of powers conferred by Clause (d) of Sub -section ( i ) and Suh- seciron ( 2A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947) on the hasis of the following Schedule .

SCHEDULE

"Whether the demand of Shri Ashok Kumar Paul Tor reinstatement of his services with the management USNL , Silchar , SSA is Iegal and justified ? If so , an what relief the workman is eratitled and from which dare

2. On being appeared by both the parties the proceedings is proceeded here for disposal being Numbered05/2006 as per Procedure.

3. The case of the wurkman Sri Ashok Kumar Paul in brief that he was in department of Telecommunication under BSNI . and worked against the Post of Master Roll and Daily Rated Mazdur and he worked for the development of Net work 01 BSNL for the installation work and maintenance of the devetnpanent work. theBSNL reirenched hirn without assigning any reason and no opportunity was given to him at the time of retrenchment . The retrenchment was illegal , arbitrary , unjustified and had in law. Ife received noretrenchment Notice in writing and in tieu of Norice the justified umount was not paid to the workman .

4. That the workman produced the working days list before the authority but the authority paid no head to in [भगखष्ट 3( i) )

भारत कर राजपत्र समस्त 4, 2007/ वण 13 , 1929

4901

Commissioner (Central) und pointed out all such points and argument about all the points against the workomen

Under the circumstances the Minag-ned payed todismiss the claim of the alleged workman.

and the Department of Telecommunication introduced & Scheme for reguluiation ofCamal Labourers who worked continuously for 240 days . But though he worked the prescribed period of 240 days continuously he was not regularized. The workman claimed that his petition is not time barred as he regularly kept contact with the sutharity for regularization.

5. That the BSNL authority, Government of India, New Delhi vide Letter No.269-10/896STN dated 7-11-89 whereby it is banned the engagement/ employment of Casual Labourer from 1988. But the Petitioner /Climant was working as daily wage Mazdoor in the Telecomatunication Department and the payment has been made on AGC -17.

6. That for many many years the petitioner /claimant continuously keeping contact with the authority and submitted all documents but it remains without response . That the original work order given by the Sub- Inspector (Phone) Mr. Narar Ali submitted to Labour Commissione.

7. That the Department ofTelecommunication, New Delhi introduced a Scheme for regularization of Casual Labourers ander the grant of temporary Status and regularization Scheme ofDOT 1989 who worked 240 days ina year . But authority deprived him from his claim

14. Perused the evidence- in -Affidavit filed by the workman Sri Ashok Kumar Paul . He claimed that he was engaged is sul labourer for 240 days in a year and as. per Scheme he is entitled to be regularized. That he is retrenched without any reason and paid no wages in lieu of notice. That his cue is not time barred as he approached the management from time to time for relief and the mmagement assured him to regularize ar to provide mlief but I have not found that the workman worked continuously for240 days in a year to get relief under the Scheme. No original doncments were called , no atttadimée Register is called to prove his claim. A Certificate is given by the workman in which it is reflected that he worked in 1989-207 days; in 1990-208 days in 1991-230 days . This docmanent is also not proved as per procedure . No Office issueNo. is given and as it is a document related to financial matter it must be proved by calling the related financial documents. Further I find there is no evidence of creation of Post of Casnal Labourer .There is no evidence of engagement or appointment letter . No attendance Register is called to prove his claim . Further he is not within the Scheme as under.

"5. Tezmporary Stahas

6. Thst under Article 38 of the Constitution be is entitled for security of service and promotion and welfare .

9. Under the present circumstances the authority ought to have beca reinstate and regularize the workman as POT/BSNL comployee. That the Casual Labourer or Daily Wagers and temporary employee can not be terminated without any reason assigning to them.

10. That the workman claim that he is catitled to have benefit w/s 25 -G, 25 -H ofthe I.D. Act. 1947 .

)6 ( Temporary Status would be conferred on al ا the casual labourers curently employed and who have rendered & continuous service of al least one year , out of which they must have been engaged on work for a period of240 days (206 days in the case of offices observing five- day week). Such casual labourers willbe designated as Temporary Mazdoor." Under the circumstances the workman prayed to pаяя order to reinstate him and regularize him with backwages.

I also found that the case is time barred as per Annexure-VI of the Mangrament.

11. The case of the Management BSNL, DOT in brief chat the workman never worked in service or employment in BSNL,DOT. The BSNL has no liability to regularized the Applicant labourer.

15. It is pertinent to note here that Sri Lachmal Lal Phar who is Sub- Divisional Engineer, Vigilance, BSNE, Silchar categorically stated that he does not know the workman . He was cross -examined as regards some documents but what I find the workman could not prove that he is within the ambit of the Scheane and that he worked 240days continuously in a year.

16. Under the above facts and circumstances what ! find the alleged workman Sri Ashok Kumar Paul is not entitled for any relief and his claim is rejected.

12. That the DOT, New Delhi vide No. 269-4/93- STN 11 (Pt) dated 12-2-1999 the authority of allDOTOfficers for engagement of casual labourers as well as the power of all Accounts Officers to pay any such casual labourer is withdrawn .That the deputruental development worits are done through the contractor on contract basis . That so called dispute raised by the Applicant after 15/16 усаrs and is time barred.

17. Prepare the award and send it to the concerned authority as per procedure confidentially and immediately.

H.A. HAZARIKA, Presiding Offiиот 15. That the Management of BSNL attended the conciliation meeting held by the Assistant Labour 4902

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 ,1929

नई बिल्ली, 19 जुलाई , 2007

करआ 2168 औधोगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की कार 17 के अनुसरण में , केन्द्रीय सरकार दूर संचार विभाग के प्रबंधितंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औधोगिक विवाद में केन्द्रीय सरकार औधोगिक अधिकरण/ क्रय प्यायालय , गुवाहाटी के पंचाट ( संदर्भ संख्या 4/2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[ सं. एल-40012/85/2005-आईआर ( डीयू)

सुरेन्द्र सिंह, डेस्क अधिकारी New Delhi , the 19th July,2007

S.O. 2168- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the award (Ref. No. 4/2006) oftheCentral Government Industrial Tribunal-cum- Labour Court, Guwaluntias shown in the Annexure in the Industrial Dispute between the employers in relation to the managemengol Telecom Department and their workman, which was received by the Central Government on 19-7-2007.

[No. 1-40012/ 85/2005-IR (DU) ] SURENDRA SINGH, Desk Offiocr

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, GUWAHATI, ASSAM

PRENENT:

SHA. HAZARIKA, Presiding Officer COTT-can-Labour Court, Gummbati Ref. Case No. 4 of2006

In the maner of an Industrial Dispute between:-- The Management of BSNL, Silchar

Their Workman Sri Rakesh Sinha

APPEARANCES

For the Work

:Mr. M. K. Jain ,Advocate .

For the Management : Mr. D. Sur , Advocate Date ofAward 4-7-2007

AWARD

1. The Government of India, Ministry of labour , NewDelhi , pide its Order No. L-40012/ 85 /2005 - IR(DU) refered this IndustrialDispute arose berween the employeть in relation to the Management of the BSNL, Silchar , and their Workman , Sri Rakesh Sinha to adjudicate and to pass an award in the strength of powers conferred by Clause (d) of Sub - section ( 1 ) and Sub- seciton ( 2A) of Section 100t the Industrial Disputes Act, 1947 ( 14 of 1947) on the basis of the following Schedule.

[PART II SEC 3 (ii ) ]

SCHEDULE

"Whether the demand of Shri Rakesh Sinba for reinstatement of his services with the management ofBSNL, Sikhar , SSA is legal andjustified? If so ,to what relief the workman is entitled and which from date

2. On being appeared by both the parties the proceedings is proceeded here for disposal being numbered4/2006 as per procedure

3. The case of the workman Sri Ratnesh Simlm in brict thathe was in Department of Telecommunication under BSNL and worked against the Post of Master Roll and DailyRated Mazdoor and he worked for the development of net work of BSNL for the installation work and maintenance of the development work . But the BSNL retrenched him without assigning any reason and opportunity was given to him at the time of retrenchment . The retrenchment was illegal , arbitrary, unjustified andbad in law. Hereceived no retrenchment Notice in writing and in lieu of Notice the justified amount was not paid to the woroman

4. That the workanen prochiced the working days list before the authoritybut the authority paid no heed to it and the Department of Telecommunication introduced a Scherme for regularization of Casual Labourers whoworked continuously for 240 days. But though he worked the prescribed period of 240 days continuously he was not regularized. The workman claimed that his petition is not time burred as he regularly kept contact with the authority for regularization .

5. That the BSNL authority, Giovemment of India . New Delhi vide letter No. 269/10/89 STN dated 7-11-89 whereby it is harmed the engagement/employment of Casual Iabourer from1988. But the petitionc / claimant was working as dailywage Mazdoor in the Telecommunication Department and the payment has been made on AGC - 17.

6. That for many many years the petitioner / claimant continuously keeping contact with the authority and submitted all documents but it remains without response. That the original work order given by the Sub-Inspector (Phone) Mr. Namar Ali submined to Labour Contraissioner .

7. That the Department of Telecommunication , New Delhi introduced a Scheme for regularization of Casual Labourers under the grant of temporary Status and ngularization Scheme of DDT 1989 who worited 240days in ayear. But authority deprived him from bis clain.

B. That under Article 38 of the Constitution he is encirled for security of service and promotion and welfare .

9. Under the present circumstances the authority ought to have been reinstate and regularize the workman as DOT/ BSNI , employee . That the Casual Labourer or Daily Wagers and temporary employee can not be terminated without any reason assigning to the .

[ भाग - खण्ड 3( ii) )

4903

भारत का 'राजपत्र अगस्त , 2007/श्रवण 13, 1929

10. That the worksman claim that he is cauitled to have benefit u/ s 25-G, 25 -H of the I.D.Act. 1947.

Under the circumastunces theworkmam prayed to pass order to reinstate him and reglurize him with backwages.

11. The case ofthe Management BSNI, DOT in brief that the workman never worked in service comployment in BSNL, DOT. The BSNL has no liability to regularized the Applicant laborer.

12. That the DOT.New Delhi videNo. 269-4/93-STN Il (Pt) dated 12-02-1999 the authority of all DOT Officers for engagement of casual labourers as well as the power of all Accounts Officers to pay any such casual labourer is withdrawn. That the deparumental development works are done through the contractor on contract basis. That so called dispute raised by the Applicant after 15/16 years and is time haurred.

13. Thar the Management of BSNL auended the conciliation meeting held by the Assistant Labour Commissioner (Central) and pointed out all such points and argument about all the points against the workman Under the circumstances the Management prayed to dismiss the claim of the alleged workman.

14. Perused the evidence- in-affidavit filed by the workman Sri Rairesh Sinha. He claimed thust he was engaged as Casual Labourer for 240 days in a year and as per Scheme he is entitled to be regularized . That he is retrenched without any reason and paid no wages in lieu of notice. That his case is not time berred as be approached the management from time to time for relief and the management asspred him to regularize or to provide relief but I have not found that the Workrom worked continuously for 240 days in a year to get relief under the Scheme . No criginal do curs.cuts were called, no attendance Register is called to prove his claim. A Certificate is given by the workman in which it is reflected that he worked in 1989-165 days; in 1990-169days and in 1991-152 days. This document is also not prove as per procedure . No Office issueNo. is given and as it is a document related to fumcial matter it must be provedby calling the related financial documents . Further I find there is no evidence of creation ofPost of Casual Labourer . There is no evidence of engagement or appointment letter . No attendance Register is called to prove his claim . Furtherhe is nor within the Scheme is under:

"5. Temporary Status

Temporary Status would be conferred on all the casual Labourers currently employed und who have rendered a continuous service of at least one year , out of which they must have been engaged on work for aperiod of 240days (206 days in the case of offices observing five- day week) . Such casual labourers will be designated as Temporary Mazdoor. " I also found that the case is time barred as per AnnexureVI of the Management .

328G -12

15. It is pertinent to note bere that Sri Lachman lal Bhar who is Sub-Divisional Engineer , Vigilance , BSNL, Silchar categorically stated that be does not know the workman . He was cross - examined as regards some documents but what I find the workman could not prove that he is within the ambit of the Scheme and that he worked 240 days continuously in a year .

16.Under the above facts and circumstraces what I find the alleged workman Sri Sinha is not entitled for any relief and his claira is rejected.

17. Prepare the award and send it to the concerned suttiority as per procedure confidentially and immediately.

H.A. HAZARIKA, Presiding Officer नई दिल्ली, 19 जुलाई , 2007 कर.. 2169.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केंद्रीय सरकार दूर संचार विभाग के प्रधितंत्र के संबद्ध नियोक्कों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केंन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय, गुवाहाटी के पंचाट ( संदर्भ संख्या 3/2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुमा बा ।

[सं. एल-40012/84/2005- आईआर(डीयू) ] सुरेन्द्र सिंह , डेस्क अधिकारी NewDelhi , the 19th July,2007

S.O. 216.In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 3/2006) oftheCentral Goverment Industrial Tribunal-cum -Labour Court, Gurwaharti as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Telecom Department and their workman, which was received by the Central Government on 19-7-2007.

[No.L-40012/84/3005- IR (DU) ) SURENDRA SINGH, Desk Officer ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, GUWAHATI, ASSAM PRESENT

Si H.A. HAZARIKA, Froiding Officer CGTT -LabourCount Gawahed Ref. CareNo. 3 of2006

In the matter ofan Industrial Dispute between TheManagement ofBSNL, Silchar Vs. Their Workman Sri Santa Sinha 4904

THT: GAZETTE OF INDIA : AUGUST 4, 2107/ SRAVANA 13. 1924

(PART Π-SFr . i APPEARANCES:

For the Workman

Mr. M. K. Jain , Advocate.

For the Management Mr. D. Sur ,Advocate

Date of Award4-7-07

7. Thai the lepurtment of Telecommunication . New Delhi introduced a Schene for regularization of Casual Labourers under the grant of temporary Status and regulanrizaion Scheme of DOT 1989 who worked 240 days in a year . But authority deprived him from his claim.

AWARD

8. That under Article 38 of the Consti จ ยา on hes entitled for security of service and promotion arul welfare

9. Under the present circumstances the authority ought to have heen reinstate and regularize the workman as DOT/ RSNL employee. Thae lire Casual Labourer or Daily Wagers and temporary employee can not be terminated without any reason assigning to them.

1. TheGovernment of lodia, Ministry of Labour, New Delhi , vide its order No. 140012/ 84/2005 - IR ( DU ) referred this Industrial Dispute prose between the employers in relation to the Managerment of the BSNL, Silchar , and their Workman, Sri Santa Sinha to adjudicate and to pass an award on the sirength of powers conferred by Clause (d) of sub - section ( 1 ) and sub- section ( 2A) of Section 10 of the Industrial Dispunes Act, 1947 ( 14 of 1947) on the basis ofthefollowing Schedule.

10. That the workman claim that he is entitled to have bepetit us 25 -G . 25 The 1.D.Act 1917.

SCHEDULE

Under the circumstances the workman prayed to pass neder to reinstate him and regularize him with back wages.

-Whether thedemand of Shri Santa Sinha for reinstatement of his services with the management ofBSNL, Silchar , SSA is legal justified ? If so , to whar relief the workman is entitled and from which date ?"י

11. The case of the Management BSNL, DOT in wiel daat Dhe workman neverworked in service or employment in BSNI .. DOT. The BSNL has no liability to regularized the Applicant laboures .

2.On being appeared by both the parties the proceedings is proceeded here for disposal being Numbered 3/2006 as per Proocdune

12. That the DOT. New Delhi vide No. 269-4/93- STN (Pt) dated 12-02-1999 the surhurity of all DOT Officers for engagement ofcasual labourers as well as the power of all Accounts Officers to pay any such casual labourer is withdrawn .That the departmerital development works are done through the contractim un contract basis . That su called dispute raised by the Applicant afier 15/16 years and is time barred .

3. The case of the workman Sri Santa Sinha in brief thathe was in Department of Telecorortunication under BSNL and worked gainst the Post of Muster Roll and DailyRatedMuzdur and he worked for the development of network of BSNL for the installation work and maintenance of the development work. But the BSNL retrenched him without assigning any reason and no opportunity was given to him at the time of retrenchment. The retrenchmen was illegal , arbitrary, unjustified and bad in law .He received no retrenchment Notice in writing and in lieu of Notice of justified amount was not paid to the workman.

13. That the Management of BSNL attended the conciliation meeting held hy the Assistant l.shour Commissioner ( Central ) and pointed our all such porots and argument about all the points against the workman.

Linder the circumstances the Management prayed w dismiss the claim of the alleged workman, 4. That the workman produced the working days list before the authority burt the authority paid no headto it and the Department of Telecommunication introduced a Scheme for regularization of Casual Labours who worked continuously for 240 days . But though he worked the prescribed period of 240 days continuously he was not regularized , the workman claimed that his petition is not tirsebarred as he regularly kept contact with the authority for regularization .

5. That the BSNL authority, Government of India, NewDelhi vide letter No. 269-10/89/STN dated 7-11-89 whereby it is banned the engagement/ employment of Casual labpurer from 1988. But the petitioner /claimant was working at daily wage Mazdour in the Telecommunicaiton Department and the payment has been made on AGC-17 .

6. That for manymany years the petitioner/ claimant continuously keeping contact with the authority and submitted jall documents but it remains without response . That the original work order given by the Sub- Inspector (phone) Mr. Namar Ali submitted to Labour Commissioner .

14. Perusand the evidence desposed by Sri Lactbroen LalBhar. Divisional Engineer Vigilance . HSNL , who is Cross examined by the learned Advocare Mir . M. K. Jain for the workman Sri Sarua Sinha . In his evidence - in-Affidavit the workman stuted that he was working under BSNI.. Departament ofTelecommunication, Silchar, on the basis of MR& DRM and worked for total period of 459 days . He also stated that the was retrenched by the Management without giving any notice and without paying wages in lieu ofNotice. As per Scheme introduced by the DOT, New Delhi he ought to have been regularized but he is not regularized though he was assured by the Management to regularize bim . As per claisti , as he worked 240 days as engaged casual labourer he ought to have heen regularized . In cross examination pars he has depused that no appointment lerrer wins issued to him. A centificate was issued that heworked under BSNI, lor 459 days . He filed the case after a long time for want of money .

[भाग -खण्ड 3 ( ii) ]

4905

भारत का राजपत्र अगस्त 4, 2007/13 , 1929

15 I have gone through the certificate issued by Namar Ali , S. 1. Phone countersigned by on Sub-Divisional Engincer , Phone. In this certificate no issne No. as per. procedure is given. No original is called. This is relatedto financial matter, there mustbe financial record to prove this document. Hence , in my opinion this document is not authentic and acceptable as evidence. Further I find the workman Sri Santa Sinba could not prove that he falls in any Scheme for regularization . In Annexure- III there is a definition as regards Temporary Status which is as follows :

" 5. Temporary Status

1 Temporary Status wouldbe conferred on all the casual labourers currently employed and whohave rendered a vontinuous service of af Seast one year , out of which they must have been engaged on work for a period of240 days (206 days in the case of offices observing Fiveday week ) . Succh casual labourers will be designated as Temporary Mazdoor." The workman Sri Santa Sinha could not prove that he was engaged by the Management and worked continuously for 240 days in a year . Further I also find as регAnnexure-VThis claim is time baumed,

16. Under the above facts and circumstances what ] tind that the workman could not establish that he was engaged by the Management and acquired temporaгу status to be regularized.

17. In the result, I find the Workman Sri Santa Sinha is not entitled for any relief and his claim is rejected.

18.Prepare the award and send it in the concerning authority confidentially and immediately.

H. A. HAZARIKA, Presiding Officer नई दिल्ली, 19 जुलाई, 2007

का.आ. 2170, औद्योगिक विकार अधिनियम , 1947 (1947 क. 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीय, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणा श्रम न्यायालय , गुवाहाटी के पंचाट ( संदर्भ संख्या 2/2006) को प्रकाशित करती है, जो केन्द्रीय सरकार को 197-2007 को प्राप्त हुआ था ।

[सं. एल -40012/83 /2005 - आईमार (डीयू) ] सुरेन्द्रसिंह , डेस्क अधिकारी New Delhi, the 19th July,2007

S.0. 2170,-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Goverment hereby publishes the Award (Ref. No. 2/2006) of the Central Government Industrial Tribunal-am-Labour Court, Guwahatias shown in the Annexure in the Industrial Dispute between the employers in relation to the ofTelecomDepartment and their wodorm,which way received by the Central Government on 19-7-2007.

[No. L-40012/83/2005- IR (DU

SUURENDRA SINGH, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, GUWAHATI, ASSAM

PRESENT:

Shri H. A. HAZARIKA, PresidingOfficer CGIT-cum-Labour Court, Guwahati

Ret. Case No. #2 of2006

In the matter of an Industrial Dispute between:- The Management ofBSNL, Silchar Vira

Their Workman Sri Fayaj Uddin Laskar .

APPEARANCES .

For the Workman

Mr. M.K. Jain, Advocate. For the Management : Mr. D. Sur, Advocate Darted ofAward 4-7-07

AWARD

1. TheGowemment of India, Ministry of LabourNew Delhi, vide its order No.L-40012/ 03 /2005 - IR (DU) referred this Industrial Dispute arose between the employers in relation in theManagement of the BSNL, Sikchar , and their Workman, Sri Jayaj Uddin Laskar to adjudicate and to pass an award on the strength of powers conferred by Clause (d ) of sub- section ( 1 ) sub-seciton (24) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) on the basis ofthe following Schedule.

SCHEDULE

"Whether the demand of Sbri l'ayaj Uddin Laskar for reinstatemcal of his services with the managemenм ofBSNL , Silchar, SSA is legal and justified? If so, to what relief the workman is entitled and front which date ?

2. On being appeared by both the parties the proceedings is proceeded here for disposal being Numbered 2/2006 as per procedure .

3. The case of the sorkman Sri Fayaj Uddin Laskar in brief that he was in Department ofTelecommunication under BSNT . and worked against the Post of Master Roll and Daily Rated Mazdoor and he worked for the development of net work ofBSNL for the installation work and trainteace of the development work . But the BSNL retrenched him without assigning any reason and no opportunitywas given to him at the time of retrenchment. The retrenchment was illegal, arbitrary, unjustified and bad inlaw.He received no retreachment Notice in writing and in lieu ofNotice the justified amount was not paid tothe workman 4906

[PART I-Soc. Ki THE GAZETTE OF INDIA : AUGUST 4, 2007/SRAVANA 13.1929

Under the circumstances the Management prayed to dismiss the claim of the alleged workman .

14. Perused the evidence- in- Affidavit filed by the workman . The workman is not cross exathined by the Management Advocate . The Advocate for the Workmao subrointed thatbe is not willing to proceed with the case as the workman is not willing to kee contact to him .

4. That the workman produced the working days list before the authority but the antiority paid no head to it and the Department of Telecommunication introduced a Scheme for regulurization of Casual Labourerswho worked onntinuously for 240 days . But though he worked the rea.tibed period of 240 days continuously he was not regularized the workman claimed that his petition is not time bured as be regularly kept contact with the authority for regularization.

S. That the BSNL authority, Government of India, New Delhi vide letter No. 269-10/89 /STN dated 7-11-89 whereby it is banned the engagement/ employment of Casual laburrer from 1988. But the petitioner / claimant was vorking as plaily wage Mazdoor in the Telecommunication Department and the payment has been made on AGC -17.

6. Tut for many many years the petitioner/ claimant continuously keeping contact with the authority and submined nil decumenis but it remains without response . That the vegin work onder given by the Sub- Inspector (Phone) Mr. Namar Ali submitted to Labour Comunissioner .

7. That the Department of Telecommunication, New Delhi introduced a Scheme for regularization of Casual Labourers under the grant of temporary Status and regulanzaión Scheme of DOT 1989 who worked 240 days in a year. Blur authority deprived him from bis claim .

8. That under Article 38 of the Constitution he is entitled for security of service and promotion and welfare.

Perusal the evidence desposed by Sri Bijan Behari Nath, Sr. S.DE. , Legal, BSNL, Sikhar. He has deposed that theallegedworkman is not employee of the Management . He was never appointed by the Management . No appointment letter was issued to him . He is not er055- examined by the learned Adovcate Mr. M.K. Jain . The reason behind it is that the workman remaio absent . However I have perused all the relevant documents and evidence - in -Affidavit ofthe workman . 1 find the workroan Fayaz Uddin Ahmed though chamined that he worked 5.30 days yet I found he has not worked 240 days continuous work in a year. Further there is 10 evidence of creation of posts ofGrade- D or casual labour to give him status and regularization of casual labourer .He has submitted a list of working days but that bas not ben proved as per procedure. No documents is called from the end of the Management Even the Attendance Register . The matter as per Annexure- VI of theManagement is fatal due to inordinate delay.All in all I find the workman side is failed to establish that he was a casual labourer at any time under the Management It is very much important to note here that to acquire teosporary status the following condition is to be proved by the workman and in the instant case the workman entirely failed to proved it .

5. Temporary Status

9. Under the present circumstances the authority ought to have been reinstate and regularize the workman as DOT/ BSNL, employce . That the Casual Labourer or Daily Wagers and temporary employee can not be terminated without any reason asigning to them.

10. that the wokman claims that he is entitled to have benefit u/ s 25-G, 25 -H ofthe LDAct, 1947.

Under the circumstances the workumam prayed to pass order to reinstate hin and regularize him with back wages.

(i ) Temporary Status would be conferred on all the casus, labourers currently employed and who have rendered a contimuous service of at least one year, out of which they must have been engaged on work for a period of240days (206 days in the case of offices observing five- day week) . Such casual labourers will be designated as Temporary Mazdoor. " 11. The case ofthe Management BSNL, DOT in brief that the workman never worked in service or employinent in BSNL, DOT. The BSNL has no liability to regularize the Applicant labourer .

16. In the result , what I find the Workman is 101 cntitled for any relies he claimed and his claim is rejected. Accordingly prepare the award and send it confidentially To the authority concemed immediately.

HA . HAZARIKA . Presiding Officer

नई दिल्ली, 19 जुलाई, 2007

12. Thatthe DOT. New Delhi videNo. 269-4/93 - STN II (Pt) dated 12-02-1999 the authority of all DOTOfficers for engagement of casual labourers as well as the power of all Accounts Officers to pay any such casual labourer is withdrawn. That the departmeneal development works are done through the contractor on contract basis. That so called dispute raised by the Applicant after 15/16 years and is time barred.

का.आ. 2171.-औद्योगिक विवाद अधिनियम, 1947 (1947 का (4 ) को घाग के अनुसरण में, कंन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय , गुवाहाटी के पंचाट ( संदर्भ संख्या 1/2006) 13. That the Management of BSNL attended the conciliatiba meeting held by the Assistant Labour Commissioner (Central ) and pointed out all such points and argument about all the points against the workosan .

[ भाग खाण्ड 3 ( ii) ]

भारत का रावपत्र अगस्त 4, 2007/ावण 13 , 1929

4907 को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

2. On being appeared by both the parties the proceedings is proceeded here for disposal being Numbered 1/2006 as per Procedure.

[सं. एल-40012/82/2005 - आईआर(डीयू) ]

सुरेन्द्र सिंह , डेस्क अधिकारी

NewDelhi, the 19th July,2007

3. The case of the workmin Sti Amil Sinha in twiet that hewas in Department of Telecommunication under BSNL and worked against the Post of Master Roll and DailyRated Mazdur and he worked for the developmentof network ofBSNL for the instaluation works and maintenance of the development work. But the BSNL retrenched him witbont assigning any reason and no opportunity was given 10 him at the time of retrenchracat. The retrenchment was Megal, arbitrary, unjustified and bed in law. He received no retrenchment Notice in writing and in lieu of Notice the justified amount was not paid to the workman .

S.O. 2171.In pursuance of Section 17 of the Industrial Disputes Act. 1947 ( 14 of 1947), the Central Govermanent hereby publishes the award (Ref . No. 1/2006) ofthe Central Goverment Industrial Tribunal -cum- Labour Court,Guwahati as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Telecom Department and their workman, which was received by the Central Government on 19-7-2007 .

No.1-40012482/2005 - IR (DU) )

SURENDRA SINGH, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, CUWAHATI, ASSAM

4. That the workmm produced the working days listbefore the authority but the authority paid no beed to it and the Deparument of Telecommunication introduced a Scheme for regularization of Casual Labourers who worked continuously for 240 days . But though he worked the prescribed period of 240 days continously he was not regularized. The workman claimed that his petition is not timebarred as be regularly kept. contact with the authority for regularization

PRESENT:

Shri R.A.HAZARIKA, Predding Officer

CGIF--Labour Court, Guwahati

Ref. Case No. 01 of2006

In the matter of an Industrial Dispute between :-

5. That the BSNL authority , Government of India, NewDelhi vide letter No. 269-10/89/STN dated 7-11-89 whereby it is banned the engagement/ employment of Casual laboure from 1988. But the petitioner/claimantwas warking as dailywage Mazdoor in the Telecommunicaitoo Department and the payment has beca made on AGC-17.

TheManagerment ofBSNL, Sechar

Vrs

Their Workman Sri Anil Sicha

APPEARANCES

6. That for many many years the petitioner/claimant continuously keeping contact with the authority aud schmitted all documents but it remains without response . That the original work order given by the Sub- Inspector (phone) Mr. NamurAlli mabraitted to Labour Commissioner. For the Workman :Mr. M. K. Jain, Advocate

:Mr. D. Sur , Advocate

For the Management

Dased of Award 4-7-07

AWARD

7. That the Department of Telecommunication, New Delhi Introduced a Scheme for regularization of Casual Labourers under the grant of temporary Status and regulanzaion Scheme of DOT 1969 who worked 240 days ina year . But authority deprived him from his claim.

8. That under Article 38 of the Constitution he is entitled for security of service and promotion and welfare .

9. Under the present circumstances the authority ought to have been reinstate and regularize the workman BS DOT/ BSNL employee . That the Casual Labourez or Daily Wagers and temporary employee can not be terminated without any reason assigning to them.

1. The Government of India, Ministry of labour,New Delhi , vide its order No. L-40012/82/2005- ER ( DU ) refiamed this Industrial Dispute arose between the employers in relation to the Management of the BSNL, Silchar, and their Workman, Sri Anil Simbu to adjudicate and to pass an award on the strength of powers conferted by Clause (d) of sub- section ( 1 ) and sub- seciton ( 2A) of Section 10 of the Industrial Dispute Act, 1947 ( 14 of 1947) on the basis ofthe following Schedule.

10. That the wordman claim that he is cutitled t have benefit U/ h 25 -G , 25- H of the I.D. Act.1947.

SCHEDULE

Doder the circumstances the workman prayed to pass order to reinstate bion and regularize him with back wages.

"Whether the demand of Shri Anit Sinha for reinstatement of his services with the management ofHSNL, Sikhar , SSA is legal justified ? If so, to whal relief the workman is entitled and from which date ?"

11. The case ofthe Management BSNI, DOT in brief that the workman never worked in service on employment 4908

THE GAZETTE OF INDIA : AUGUST 4 , 2007 / SRAVANA 13. 1929

[PART II SLC . 30 );

inBSNL, DOT. The BSNL has no liability to regularized theApplicant labourer .

described. 1 find as per this Anexure the claim of the workman due to inordinare delay became not entertainable . Tr is not proved by the workman thar he is entitled for any Scheme ot the BSNL as the relation of the workman and the Management is nut en existence or proved. Tis aquare temporary status of Casual Labour as per Annexure- III the following onndition is to be fulfilled:

".Temporary Status

12. Thatthe DOT, New Delhi videNo. 269-4/ 93 -STN II(Pt) dated 12-2-1999 the authority of all DOT Officers for engagement of casual labourers as well as the power of aال Accounts Officers to pay any such casual labourer is ithdrawn .That the departmental development works are done through the contractor on contraęs basis . That so called dispune praised by the Applicant after 15/16 years and is time barted

13. That the Management of BSNL attended the conciliation meeting held by the Assistant Labour Coromissioner (Central ) and pointed out all such points and argument about all the points against the workman .

(1) Temporary Status would be conferred on all the casual lahunters currently employed and who have rendered a continuous service of al least one year , out of which they must have been engaged on work for a period of 240 days (206 days in the case of offices observing five- day week) . Such casual labourers will be desiguated as Temporary Mazdoor." Under the circumstances the Management prayed todismiss the claim of the alleged workman.

But what I found the workman has ont fulfilled this condirinn . Hence, he is not entirled for regularization as Casual employee underthe BSNL or the Management . In the result, I find the workman is not enciched for any relied and his prayer is rejected .

17. Prepare the award and send the same to the authority concerned as per procedure confidentially immediately .

11.A. HAZARIKA, Presiding Officer नई दिल्ली , 16 जुलाई , 2007

14. Perusal the evidence- in-Affidavit filed by the workman. Alse perused the cross examination made by Mr. D. Sur, Advocate for the Management . Also perused the evidence deposed by Sri Lachman Lal Bhar for the Management, who is cross - examined by the learned Advocate Mr .: M.K. Jato for the workman. The brief comention of the evidence submitted by the workman Anil Sinha that he was a BSNT.ermployee worked for total period 483 days. That he is illegally retrenched by the Management without notice and without paid in lieu of Notice. That he ought to have been regularized as he has worked for 240 days in a year . Thebe has submitted in Ext . A a certificate issued by Jamar Ali , Sub- Inspector , Phone under whom he worked for 483 days. In cross -examination part behas admitted that no appointment letter was issued un him. That presently he is not working under BSNL. In cross- examination part he has also admitted that the matter became timebarred due to pretext by the Management as management assured him to regularize time to time Ext Ais the list ofworking days , he worked.

का.आ. 2172, केन्द्रीय सरकार संतुष्ट हो जाने पर कि लोकहित में ऐसा करना अपेक्षित था , औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 2 के खण्ड ( इ ) के उप खण्ड (vi ) के उपबंधों के अनुसरण में भारत सरकार के श्रम मंत्रालय की अधिसूचना संख्या कर. आ. 268 दिनांक 16-1-2007 द्वारा बैंक नोट मुद्रणालय देवास ( प.प्र. ) जो कि औद्योगिक विवाद अधिनियम 1947 (1947 का 14 ) की प्रथम अनुसूची की प्रविष्टि 22 के अन्तर्गत निर्दिष्ट किया गया है , को उक्त अधिनियम के प्रयोजनों के लिए दिनांक 19 1. 2007 से छः मास की कालावधि के लिए लोक उपयोगी सेका फोषित किया था;

15. The witness for the Managerment deposed that workman is not known to him and no appointment letter is used to issue to the Causal employee.

और केन्द्रीय सरकार की राय है कि लोकहित में उक्त कालावधि को छः मास की और कालावधि के लिए बढ़ाया जाना अपेक्षित है ।

अतः अब, औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) को धारा 2 के खण्ड ( क ) के उप- खण्ड ( vi ) के परन्तुक द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए केन्द्रीय सरकार उक्त उद्योग को उक्त अधिनियम के प्रयोजनों के लिए दि. 19-7-2007 से छः मास की कालावधि के लिए लोक उपयोगी सेवा घोषित करती है ।

[फा. सं. एस -11017/ 1 /2006 आई मार ( पीएल ) ] गुरजीत कौर, संयुक्त सचिव

New Delhi , the 16th July , 2007

16. Heard the argumant submitted by Mr. D. Sur, Advocate for the Management and Mr. M. K. Jain . Advocate for the workman . Perused the documents relied byboth the parties. I find a list of working days is submitted by the workman but to prove the same he has not called any record from the end of the Management. This document can not be accepted authentic documem . However, I have found though the worked 483 days yet he has not worked 240 days in a ydar . As per the Scheme to be regularized he must be aCasual comployee and he must work 240 days in a year . No Arendanuz Register is called and proved. There is no evidence of treation of posts for Grade-Demployce or Casual labourer. It is not proved that the workman worked under BSNL. The Management has submitted Annexure- VI wherein as regards the time limitation is

S.O. 2172. Whereas the Central Government having been satisfied that the public interest su requires [भाल -कृण्ड ( it ) ]

4909

भारत का राजपत्र : अगस्त 4, 2007/ श्रवण 13, 1929

Jazminalamadugu Mandal of Kadapa District in Andhra Pradesh ."

No. 5-38013/19/ 2007 -S.S.J S. D. XAVIER, Under Secy.

नई दिल्ली , 17 जुलाई , 2007 that in pursraance of the provisions of sub- clause (vi ) of the clause (n) of Section 2 of the Industrial DisputesAct, 1947 ( 14 of 1947 ), declared by the Notification of the Goveroment of India in the Ministry of Labour S. O.No. 268 dated 16-1-2007 the service in Bank NotePress, Dewas which is covered by item 22 of the First Schedule to the Industrial Disputes Act , 1947 ( 14 of 1947 ) to be a Public L'tility Service for the purpose of the said Act, for a period of six months from the 19th Januагу, 2007.

And whereas , the Central Government is ofopinion thac public interest requires the extension of the said period by a further period of six months.

का.आ. 2174, केन्द्र सरकार , राजमाया ( संत्र के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उप-नियम ( 4 ) के अनुसरण में निम्नलिखित कार्यालय को, जिनके 80 प्रतिशत कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है, अधिसूचित करती है :

क्रम संख्या

कार्यालय का नाम

1 . आंचलिक प्रशिक्षण संस्थान ( उत्तरी अंचल , फरीगामार

क्षेत्रीय श्रम आयुधत ( केन्द्रीय ) , जयपुर 2

Now, therefore, in exercise of the powers conferred by the provisu to sub-clanse (vi ) of clause (1) of Section 2 of the Industrial Disputes Act , 1947, the Central Government hereby declares the said industry to be a Public Utility Service for the purposes of the said Act , for a period of six months from the 19th July,2007.

सहायक श्रप आयुक्त (केन्द्रीय ) , कोटा J.

श्रम प्रवर्तन अधिकारी (केन्द्रीय ) , उदयपुर 4

[F. No.S- 11017/ 1/2006- IR (P1 )) GURJOT KAUR,It. Socy.

5. श्रम प्रवर्तन अधिकारी ( केन्द्रीय ) , जोधपुर नई दिल्ली, 17 जुलाई , 2007

श्रम प्रवर्त्तम अधिकारी ( केन्द्रीय ) , बीकानेर

श्रम प्रवर्तन अधिकारी ( केन्द्रीय ) , भीलवाड़ा 7.

& श्रम प्रवर्तन अधिकारी ( केन्द्रीव ) , सवाईमाधोपुर

[सं. ई-11017 /1 /2006- रामानी ]

शारदा प्रसाद, संयुक्त सचिव

NewDelhi , the 17th July ,2007 का . 2173.-कर्मचारी राज्य बीमा अधिनियम , 1948 ( 1948 का 34 ) को वाय-1 की उप धारा ( 3 ) द्वारा प्रदत्त शक्तियों काप्रयोग करते हुए , केन्द्रीय सरकार एतद्‌द्वाय । अगस्त, 2007 को उस तारीख के रूप में नियत करती है , जिसको उक्त अधिनियम के अध्याय-4 (44 व 45 भारा के सिवाय जो पहले से प्रवृत्त हो चुकी है ) अध्याय -5 और 6 [ पाय 76 की उपधारा ( 1 ) और थाय 77, 78, 79और 81 के सिवाय जो पहले ही प्रवृत्त की जा चुकी है ] के उपवन्ध सान्ध्र प्रदेश राज्य के निम्नलिखित क्षेत्रों में प्रवृत्त होंगे , अर्थात्

" आन्ध्र प्रदेश राज्य के कड़‌ा जिले में स्विस जम्मलभडुगु मण्डल के अन्तर्गत जम्मलम्बूगु नगर पालिका के सीमा के अन्तर्गत सभी क्षेत्र एवं मोरगूद्धि राजस्व गांव । "

8.0. 2174-1o pursuance of sub- rule (4) ofRule 10 of theOfficial Language (Use for official purposes of the Union),Rules, 1976 the Central Government hereby notifies following ollices, 80 % Staff whereof barve acquired working knowledge ofHindi :-

SLNo.

Name of the Office

[सं. एस-38013 /19/2007- एस.एम. -1] एस. दो. नेवियर, अवर सचिव

1. Zonal Training Institute (North Zone), Faridabad New Delhi, the 17th July,2007

2. Regional Labour Officer ( Central ), Jaipor

3. Assistant Labour Officer (Central),Kots

4. Labour Enforcement Officer (Central ), Udaipar

5. Labour Enforcement Officer ( Central ), Jodhpur

LabourEnforcement Officer ( Central) , Bikaner

7. Labour Enforcement Officer (Central),Bhilwara

8. Labour Enforcement Officer (Central) , SawaiMadhopur

8.0. 2173.-In exercise of the powers conferred by sub-section (3) of Section I of the Employees ' State Insurance Act, 1948 (34 of 1948 ) the Central Government hereby appoints the 1st August, 2007 as the date on which the provisions ofChapter IV ( except Sections 44 and 45 which bave already been brought into force), and Chapter- V and VI [ except sub - section ( 1 ) of Section 75 and Sections77, 78,79 and 81 which have already been brought into forcel of the said Act shall come into force in the following areas in the State ofAndhra Pradesh namely :

"All the areas falling within the Municipal limits of Jammalamadugu and Revenue Villages of Moragudi of

[No.E- 11017/ 100OS RBN SHARDA PRASAD, It. Secy.

4910

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13 , 1929

नई दिल्ली , 19 जुलाई , 2007

कर,आर. 2175,-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की था । 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधितंत्र के संबद्ध नियोजकों और उनके कर्मकारों के चौच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , चेनई के पंचाट ( ससंदर्भ संख्या 232/2004) को प्रकाशित करती है , वो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ श्री ।

[ सं. एल -12012/433-98 - आईसमर ( ची-1 ) ] अवय कुमार, डेस्क अधिकारी NewDelhi , the 19thJuly,2007

S.O. 2175-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Goverament pereby publishes the award (Ref. No. 232/ 2004) of the Central Government Industrial Tribunal - cum- Labour Coun , Chennai as shown in the Annexure in the Industrial Dispute between the management of StateBank of India and their workmen , received by the Central Govermentin 19-7 2007.

[No. L- 12012/433/98- IR (B -11 ] AJAY KUMAR, Desk Officer

ANNEXURE BEFORE THE CENTRAL COVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, CHENNAI

Wednesday, tac 31st January, 2007 :

PRESENT:

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 232/2004

(Principal Labour Court CGID No. 151/99) ( In he matter ofthe dispute for adjudiation under clause (d) of sub- section ( 1 ) and sub- section 2(A) of Section 10 of the IndustrialDisputes Act. 1947 ( 14 of 1947) , between the Marnagement ofState Bank of India and their workmen)

BETWEEN

SriM. Ananda Babu

[PART I- SEC . 3( 3 ) Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 151/99 and issued notices to both parties . Both sides entered appearance and filed their claird statement and Counter Statement respectively. After the constitution of this CGIT- cum- labour Court, the said dispute has been transferred in this Tribunal for adjudication and this Tribunal has numbered it as 1.0. No. 232/2004 .

2. The Schedule mentioned in that order is as follows:

"Whether the demand of the workman Shri M.Ananda Babu , wait list No.741 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as teroporвгу messenger is justified? If so , in what relief the said workman is entitled?"

3. The allegations of the Petitioner in the Claim Statement are briefly as follows:

: 1Party Petitioner

AND

TheAssistant General Manager, II Party/ Management State Bank of India, Z. O. Chennaj .

APPEARANCE

For thePetitioner

: Sri V. S. Erabao, Authorised Representative.

For the Management : M/ s . K. S. Sundar, Advocates .

AWARD

1. TheCentral Cuverturnent Ministry of Labour, vide Order No. 1.- 12012/433/98 - K ( B -I ) dated 10-2-1999 hus referred this dispute carlier to the Tamil Nadu Principal The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class 19 cadre in State Bank of Indiaand he was given appointmenm as messenger after an interview and medical examination. He was appointed on temporary basis an Pallavaram branch from 14-3-1913 . The Petitioner was oraliy informed than his services were no more required. The non -employment of the Petitioner and sibers hecame subject matter before Supreme Court in the form of Writ Pention filed by Stale Bank Employees ' Union in Whir Petition No. 542/87 which was taken up by the Supreme Court. The Responden Bank, 16 addition to sts counter , led a copy of settlement under Section 18 ( 1 ) reachedbetween management of State Bank of India and Ali Jindia State Bank of Judia Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied empbuyment aller 1985 86 were classiferl in the seulemene was under consideration once again and they classified the workmen under three categories Hamely A. R and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitmorier about the interview to be held through advertisements . The Petitioner also submuted his application in the prescribedformat through Brunch Manager of the Pallavaram branch . The was called for an interview by a Committee appointed by Respondent/Bank in this regard But , they have not infornied the result of interview and also with regard to appointment . Bart , the Petitioner was informed orally to join at the manch where he initially worked as a class IV employee. From 14-3-1983 , the Petitioner has been working as a temporary messenger and somsetime performing work in other branches also. While werking on temporary basis an Guindy branch , another advertisement hy the Respondem Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally un 31-3-1997 that his services are nul required any more and he seed ont attend the office from 4911

भारत का प्रथपत्र अगस्त 4 , 2007/ अवण 13 , 1929

[ भाग II--खण्ड 3( ii) ]

1-4-1997. Hence, the Petitioner mised dispute with regard In his non-employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance ofthe Petitioner , he has made a fresh representation to Govt .lo reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-1997 and in regularise him in service in due course . The Respondeat/Bank took up an unreasonable stand that the service and the ber of days worked by Petitioner were treated is of no consequence , since according to the Respondent/Bank, it engagect the Petitioner only in temролагу гvices after the settlement . The Petitioner was not aware of settlement by which his services and sumber of days worked by him after interview do not merit consideration . The Petition was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer .Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal. Further, the sertlements are repugnant to Sections 250 & 25H of the LD .Act. The termination of the Petitioner is against the provisioma of Para 522(4) ofSastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the RespondentBank has been regularising according to their whims and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefita etc. to the temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner and extracted the same work either bypayment ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice. The wait list suffers serions infirmities and it in not hased on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grand relief ofregular employment in Respondent Bank with all attendant beoefits.

Federation which resulted in five settlements dated 17-11-1987, 16-07-1968,07-10-1988.9-1-1991 30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under section. 18(3) ofLD. Act. In terms thereof, the Petitioner was considered forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitionerwas wait lined as candidate No.735 in wait list ofZonal Office, Chestsal. So far 357wait listed temporary candidates, out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a trampoгагу messenger . The Petitioner was engaged only in leave vacancies asand when it mose . When the Petitioner baving submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot torn around and claim appointmen . Such ofthose trumporary employees who were appointed were engagأخ for more nomber of days and hence , they were appointed. Under the settlement, employees were categorised as AB and C.Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 daya were to be considered and under category (B ) the temporary employees who have completed 270 days aggregate temporary service in my comimuona block of36 calendar months and under category (C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimuen 70 days aggregate temporntity service in any continuous block of 36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to hupse in December, 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were toarise upto 31-12-1994. The Petitioner has no valid and enforccable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary cmployees were working in leave vacancies and not in regular permanent vacancies. In terms of aforesaid settlements , our of744 wait listed candidates, 357 Мавросіту employees were appointed and since the Petitionerwits wait listed at 735 he was not appointed . The said settlements were bona fidewhich were the only workable solution and is binding on tise Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liableto he rejected. Further , the said seirlements were not questioned by any union so far and the settlemeals of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act, 1981 does not apply to Respondent/Bank und this Tribunal has no jurisdiction to entertain such ples. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct. In say that the Petitioner was discharging the work of 4. As against this , the Respondent in its Counterт Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuons service . Hence, the question ofregular appointment'absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of LD . Act in lieu of provisions of Law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior rootive . The Petitioner concealed the material facts that he was wait listed as per bis length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permament absorption and when their case was espoused by State Bank of India Staff

3218 GI107-13 4912

THE GAZETTE OF INDIA: AUGUST 4, 2007 / SKAVANA 13 , 1929

permanent messenger . As per settlements, vacancies upto 31-12-94 Mere filled up against the waited list of termporary employens and vacancies for 1995-96 has to be filled up Against the wait list drawn for appointment of daily wages/ casual labour. Further , for circle of Chennai walt list of dailywages was not finalized and bence not published and there is only one wait list for the appointment oftemporary employeds.After the expity of wait list, the Petitioner has to claim, for permanent absorption . Hence, for all these reasons, the Respondent prays to dismiss the claire with costs.

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by comployment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/ Bank for selection of candidate for appointment in the post of messenger and other class TV post. He was engaged in the messenger post in the subordiniuc cadre of the Respondent that corsinuously with deliberate and artificial breaks . Therefore, the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus . the Respondent/Bank imposed total ban for his future employmcor. Even though there were sufficicar number of vacancies in chess IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent /Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workinen according to thair whichs and fancies. Hence , the Petitioner prays that an award may be passed inhis favour ....

6.Again, the Pelitioner filed a rejoinderto theCounter Statement of the Respondent , wherein it is stated that all the sculenients made by the bank with the State Bank of India Staff Federation were under section 18 ( 1 ) of the Act and not under section 18( 3 ) of the Act. As per recruitment rules of the Respondent/ Bank, recruitment of class IV staff in the Respondent Bank is in accordance with the inguuctikins laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W.P. No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthe Petitioner. Hence, the Petitioner prays that an award may be passed in bis favour .

7. lo these circumstances , the points for my consideration are :

( 1) "Whether the demand of the Petitioner in Wail List No. 741 for restoring the wait list of temporary messengers in the Respondent Bank and consequential appointment thereupon as temporary messenger is justified?"

"To what relief the Petitioner is cutitled ?"

[PART I- SFC. 3 ( 1 ) ] Point No. 1:

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsured byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary hasis.After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since theRespondent/Bank terminated several temporaгу eamployees in the year 1985. the State Bank Employees Unico had filed a Writ Petitionbefore the Supreme Court to protect the legal and constitutional rights of the workmen cosoomed and while the matter was pending in Writ Fetition No. 542 ( Civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorbtion of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . Thus settlement has become an exhibit of the Respondent/Bank andhas been marked as Lix . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this #tilerment as it is not binding on them on the ground that theyhave been interviewed and selected in the permanent vacancy and Respondent Bank without any intimation or notice dedied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the recrenchiment as unjust and illegal and they further prayed for reinstatement with hack wages and other uttendant benefits.

9. On behalf of the Petitioner , it is contended tha these Petitioners were recruited as temporary employees in theRespondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to Lime and Further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case. the Petitioner is not bound by settlement under section 18 ( 1 ) enrered into her ween the alleged Federation and the RespondenuManagement . They further contended that though the Respondent/ Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appoimment , in the wake of strict justructions and circulars / guidelines issued by the Respondeat /Bank to the effect that temporary employees at branches / offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise ar all. Further, they have invoked the relevant provisions of Chapuer VA of the L.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers andare eligible to be reinstated.Learned representative for [ भाग - सखण्ड ( ii) )

4913

भारत का राजापत्र ; अगस्त 4, 2007/ श्रवण 13 , 1929

the Petitioner contended that in 1996 LAB & IC 2248 CENTRAI. BANK OF INDIA VS. S. SATYAM AND OTHERS the Supume Court has held that Chapter V-A of the LD . Act providing for retrenchment is not enacted only for the benefit ofthe workrmen towhom Section 25F applies but for all cases of retrenchment . Therefore, the application of Section 25H cannot be restricted only to ime category of retrenched workomen . Therefore, the contention of the RespondentBank that the Petitioner has no valid and enforceable right for appointreent is untenable. It is further contended that on behalf of the Petitioner that Ex, W2, W3 and WB as well as Ex . MB which constitute/relate to the circular instructions of the Respondent/Bank issued from lime to time in comection with the implementation ofthe settlements on absorption and which are statutory in character. Further , a combined study of Ex.M 1 and the avernments ofMW1 and MW2 and their bestimoples during the cross-cxamination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking has fuuure with the settlements. Further , Clause I ofEx. MI deals with categorization of retrenched temporагу employees into 'A. Band C , bạt this categorization of "Α. B & C is quite opposed to the doctrine of" last come fust go' or 'first come- last go' and therefore , the categorization in Clause 1 is illegal . Clause 1 (4) ofEx.M1 provides an opportunity to persons who were engaged on جأعمدالسمحت and allowed to work in leavelcasual vacancies of messengers , farashes , cash coolles , waterbays, sweepers etc. for absorption along with the other eligible categories oftemporary employops is not valid. Further, engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters, copy ofwhich is marked as Fx. Wa . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categorica is not valid. Therefore , these persons whowere engagedby the Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of amiving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex.W2 four types of waiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Fx.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to sayas to when the wait list Ex.M10 was prepared, but it is mentioned in Ex M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Fx.MI , M3 and M4 respectively. But, when MWI has spoken shout the settlements , he deposed that settlement dated 27-10-88 was put included in the Madras circle since the High Court order is there, but he has not produced any docement in support of the so called non- inclusion except his bald statement . Further , accordingto MWI wait list under ExM10 was prepared on 2-5-92 bat

there is no pleading in the Counter Statement with regard to this walk list. Further the Hon'ble High Court has beld in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is rmarked as an exhibit, in which it is stated that ' it is clear that the 1987 sertlerdent was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on martual agreement basis . In such circustosium.ces, as rightly contended the Respondent are notjustified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India. Further , the averment of MW ! and the statements in Coomer Statement are contrary to the above and it is nothing but a desperate aherupt towriggle out the illegality communitted or perpetrated by theRespondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MWI wait list under Ex M10 comparises of both messengerial and non - messengerial candidates, While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case ofcasuals. Therefore,both belongs to two different and distinct categories .But, Ex . MB provides for the same norms to the casuals as in the case of temporary employees in the matter ofahsorption. Therefore, it is violative of Article 14 & 16of Courtitution of India. Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is tot ba conformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court Order in WMP No. 11932/91 in W.P.No. 7672/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisemeat published in The Hindu dated 1-8-88. Furthermore, wait list under Ex.M10 does not carry particulans about the candidates dase of initial appointment and the member ofdays put in by them to arrive at their respective seniority. From al these things, it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to thewait list. Above all, Ex . MI was notproduced at the time ofconciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Banir produced the wail list Ex.M10 before this Tribunal marking it as a confidentia document. It is further contended on behalf of the Petitioner that though the Responden/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy.Further , even before or after the settlement on absorption of temporary employees, the expression that they were engaged in leave vacancy was used as a device to take them out of the principal PART II-SEC . ( 1 ) 4514

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13. 1929

Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 255 and 25F of the Industrial DisputesAct, therefore , sheir recreachovent from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected LDs have not completed 240 days , since the Respondent/Bank has out taken into consideration and not included the Sundays and paid holidays as days on which thePetitioners have actually worked and hence, they bave also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL . BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that the expression actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and forwhich he had been paid wages either under express or implied contract of service or by compulsion of stabune. standing orders etc. I is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected thetemporary employees who have reported 10 have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal In all these cases , the Petitioners were in employment as sub-staffin carly 1980s but were denied further engagement on account of settlements /lapsing of wait lists and out of these Petitioners some of thero have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 10 50 years and for no fault oftheirs ,they find themselves stranded in life amidstream. They have also nor gainfully employed , such circumstances, this Tribunal has to pass an award in their favour.

10. But as against this , the learned senior counsel for the Respondem/Bank contended that the reference made bythe Government itself is Dot maimainable in view of the facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18 ( 3 ) of the D. Act, in lieu of the provisions of law and implementedby the Respondent' Bunk and the claim of the Petitioners are not bonafide and are made with ulterior motive . Funher , they have concealed the material facts that the Petitioner was wait listed as per length of his cogagement and could not be absorbed as the was positioneddown in the seniority. The Respondent!

clause2 (oq) ofthe I.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitionta has performed the dutics continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further , the representative of the Petitioner relied on the rulings reported in 198545CC 301 HLD. SINGH VS. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workroen as ' badlies casuals of temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . Leamed representative further contended that Ex.M 10 wait list bas not been prepared in accordance with principle of seniority. In the legal sense , since the selected candidates with bongest service should have priority over those who joined the service later and therefore, the wait list under Ex. Μ10 whichhas been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2( e ) ofEx . M4 startes that candidates found suitable for peritiament appointment willbe offered appointinent against existing /future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deetned to have refused it and the name shall stand deleted from the respective panel and be shall have Do further claim for being considered for permanent appointment in the bank. The Respondent/Bank has cot produced any document show how he has arrived at the semiority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the avennent and also for the averment ofMWI . Therefore , the termination of the Petitioner who was in regular service of the Respondem /Bank is arbitrary, mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employecs Though the Respondent/ Bank has produced Ex .M6which alleged to be a copy of minutes ofconciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ), Hyderabad, it is neither a 18 (3) settlement nor 12 (3 ) settlement as claimed by the Respondeut/Bank which says only with regard to modification of Ex . Ml to M4 made in temps of Ex . M6 . Though the Respondent/Bank produced Ex . M7 andM11 interim orders passed by High Court of Madras in WMP No.11932/91, in W.P.No.7872/91 ceasedto have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent Management has examined two witnesses, the deposition of management witnesses curing the cross examination hadbecome apparent that they have no personal knowledge about the seulements which are marked as Ex. Ml to MS . Above all, though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank in was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent [ भार खण्ड ( i) ]

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भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

members and if there was nothing smreasonable or unfair in the terms of the settlement, it must be binding on the contestingworkmen also. " He further relied on the rulings reported in AIR2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . VS. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has beld that "seculesneol is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been rived at on sccoont of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject - matier ofyet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable." Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, Ise argued that no union of the bank has questioned the settlement amed in such circumstances, it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is 'whether the demand of the workman with wait list No. given for restoring the wait List of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?" The Petitioner contended that the retreachment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc.Hence, the Petitioner's contention against the reference thake by the Govt is DOI valid. Further , rm this case , the Court has to see whether the restoration of wait list 'tan be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement

Bank was rogaging termporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Frmployment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement catered into by the Respondent/Bank and the federation werebonafide which were the only workable solution and is binding on the Petitioner. The Petitioner sccepted the seulement and accordingly he was wait listed and therefore, thePetitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the seulements were bank level sertlements and operate throughout the country. Further. he relied on the rulings reported in 1991 ILI 329 ASSOCIATED GLASS INDUSTRIES LTD . VS. INDUSTRIAL TRIBUNALA.P . AND OTHERS wherein under section 12 ( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmon resigned from the jah and received terminal benefits , but the workinen raised a plea before the Tribunal that they did not resign voluntarily.Bot the Andhra Pradesh High Court has beld that in the absence of ples that the settlement reached in the course of conciliation is vitiated by Fraud , misrepresentation or coercion . the settlement is hinding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 BLLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORTCORPORATION AND OTHERSwherein the Division Bench of the Bombay High Court has held that "therefore a sertlement arrived at in the course of the conciliation proceedings with a recognisedmajority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs frown the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . It further held that "there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to, due weight and consideration. " Learned counsel for the Respondent further relied on the culings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into twa categories namely ( i ) those arrived at outside the conciliation proceedings under section 18 ( 1 ) of the LD . Act and ( ii ) those arrived at in the course of conciliation proceedings under section 18( 3 ). A settlement of the first category bas limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment. Even in case of the first category , if the settlement was reached with a representative union of which the onntesting, wurkmenwere

12.But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive inthe matter of renability of a reference and be relied on the culings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS LINTON VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " mere wonding of rekuence is not decisive in the matter of tenability of a reference . Even though the Tribunal camnot go beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again ." It further held that "The Tribunal should look into the pleading and find out the exact mature of pleading of The Petitioner to find out the exact nature of dispute instead :

4916

THE GAZETTE OF INDIA : AUGUST 4. 2007 /SRAVANA 13. 1929

PAR -SFc.350 ] of refusing topuswer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is on be reinsrated in service or not for which be relied on the rulings reported in 1998 LARI 1664YAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held thar "The Tribunal cannot go behind the terms of reference , but that does no zmean that it cannot look inon the pleadings of parties . " He also relied onthe rulings reported in 1998 LAB IC 1500 A.SAMHANIHAN VS. PRESIDING OFFICER, LABOUR COLRT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedanta marmer , but should consider the onder of reference inju fair and reasonable manner ." He also argued that inExpress Newspapers P. Ltd. case reported in Alk 1993SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also und the order of reference should not be construed in the manner which would prolong the industrial adjudicat วง ด . The Laboan Court is expected to decide the real nature of disputes between the parties and with that object in view. it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court " Relying on all these decisings , the representative for the Petitioner argued that though in the reference, it is pou mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Responden / Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entided to be reinstated in service as alleged by him and whether he is entitled to the back wages os alleged by hitp . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is wirbout any substance.

13. I find some force in the contention of the representative for the Petitioner. Therefore , I Tribunal is entitled to go into the question whether the retief prayed or by the Petitioner can be given to him or пос? Byu, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is nut questioned by any of the unings of the Respondent/ Bank, I Find the Petitioner is not entitled to question the settlement

select list on reduction in number of vacancies was made in view of the inapending absorption of steam surplus staff and a policy decision hus been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed fromthe select list inid the remiluniter selectees were given appuintirents according to their comparative merits in which . the Supreme Court has held that in such circumstances , dermal of appointment to the persons removed from the select list is not arbitrary and distinunatory. He further relied on the rulings. reported in 19976 SCC584 SYNDIRCA 11E BANK & ORS VS. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that "by irs letter dialed 7-2-87 the bank informed the Respondents that the panel wins vallad tur one year only and that inclusion of their names in the panel wOS JICA CO confes on them any right to seek permanent appoiarmerit in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring of 6 2-98, we are of the opinion inat the Respondents did not get any right because of inนะ sion of their names in the said panel fur permanent absorption in the services of the bank . Whatever inditrooal right tncyhad come to an end with the expiry of the panct . The ciaim of the Respondents as contained in the W.P. was thus, misconceived and therefixe, lime learned Single Judge arid the Division Beach , when it first devided the appeal were right in dismissing the Wral Petition and the appeal respectively." Ele further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDLAwherein the Supreme Courtinas held that " candidates included in merit list has no indefeasible right 10 appointmeat even if a vacancy exists" and relying on all these decisions , learned counsel for the Respondenm contended that since the Periljutier has no right to question the waat list and since there is no amala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide mutive. Under such circumstances , after the expiry of the date namely 31 3.1997, the Petitioner cannot plead for restoration of the wait list and bir cannot pray for reinstatement as alleged by him. Further . be relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANAANDORS .Vs. PLARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming in the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it deificult to sustain it . The directiun has been given without reference to the existence of a vacancy. The direction in effect means that every ad - how emporary employee who has been continued for one year should be regularised even though ( a ) no vacancy is availahile for him which means creation of a vacancy; (b) he was not sponsored hy Firnpluyment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door (c) he was not eligible and qualified for the post at the time of his appointment ; ( d) his record of service since his appointment is nut satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders None of the decisions relied 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted. now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SOC 139 LINION OF INDIA AND OTHERS VS. K. V.VIIEESH wherein the Supreme Court has held that theundy question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt service in an existing or a future vacancy . " In that case , pruning of 4917

भारत का राजपत्र अंगस्त 4 2007/ श्रवण 13 , 1929

[भन्ग - खण्ड (ii)]

upon by the High Court justify such wholesale, "last come- first go ' is not mandatory but only directory, on sufficient grounds shown, the comployer is permitted to depart from the said principle retrezaching seniors and retaiming juniors . Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, be has not established with any evidence that his juniors were made permanent by the Respondent/ Bank.Any how, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with COGIS .

15.Leamed Senior Advocate further argaed that even in recent decision reported in 20064 SCC | SECRETARY, STATE OF KARNATAKA VS. UMA DEVI, the Supreme Court hasheldthat " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled tobe absorbed in regular service or made permanent merely ou the strength of sach continuance, if the original appointment was not made by following a dne process of selection as envisaged by relevant rules . It is not open to theCoun to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad -hoc employees who by the very nature of their appointment, do not acquire any right . " Further, it has also beld that " it is not as if , the person who accepts an engagement either temporary or casual in nanare is not aware of his employment . He accepts the employment with open eyes . It maybe true that he is not in a position to bargain not at arms length since he might have been searching for some employnsent so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently.By doing so, it will be creating another mode of public appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant raica and after a proper competition among qualified persons , the same would not confer any right on the ppoinke...... It has to be clarified that merely because a temporary comployce or a caspal wage worker is continued For a timebeyond the win of his appointment, be would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following adue process of selection as envisaged by relevant rules ." Funber, in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court bas beld -that "regularisation furthermore , is not a roode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period of probation would not arise." Furtber, unconditional orders . Moreover, from the mere continuation of an ad -hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may be justified onlywhen such continnance extends to several years. Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just becanse in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it camot be beld that in cach and every case , such a direction must follow inmnmtespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act batajudicious one. From this, the impogned directions must be held to be totally untenable and unsustainable. Thus, the Supreme Court set aside the orders oflowerCourts. He further relied on the decision reported in 1997 SCCI ASHWANI KUMAR AND OTHERS V6 . STATEOF BIHAR AND OTHERS wherein the FullBench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate popcerned is appointed in an irregular manner or on ad-hocbeais against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, itwould be an exercise in futility.It would amount to decorating a stillborn baby. Under these circumstances, there was no occasion to regularise them Or to give them valid confinantion . The so called exercise of confirming these employees , therefore, remained a nullity." "Therefore, Icarved counsel for the Respondent contended that these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave, vacancies and therefore, they are not entitled to claim any absorption in the Respondent/Bank. Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARIHI & ORS VL STATE OF BIHARAND ORS. wherein the Supreme Court has beld that "they are temporary employees working on daily wages. Under these circumstances , their disengagement from service camot be construed to be a retrenchment under the ID. Act. The concept of retrenchment therefore , cannot be stretchedto such an extent as to cover these comployees. Since they are only daily wage employees and laave no right to the posts, their disengagement is not arbitrary ." He further relied on the rulings reported in 1994 3 LLJ( Supp ) 754 wherein the RajasthanHigh Court has held that "Under Section 25G of the LD .Act retrenchment procedure following principle of 4918

THE GAZOTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13. 1929

[PART I-SEC . 3 ( ii ) !

claim for reinstatement or regularisation in services of the Respondent Bank.

18. Further. The representative for the Petitioner contended that in a similar cases, this Tribunal bad ordered for reinstatement with back wages and these disputes are also similar in palaute and hence , the Petitioners are entitled for the same relief.

CDJ 2006 $ C 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINTIER KUMAR, the Supreme Court hasheld that "it is out disputed that the appointment of the Respondent was not in fanctioned post . Being a ' State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in viglation of such rules as also in violation constitutional scheme enshrined under Article 14 and 16 ofthe Constitution of India would be void in law ." Further. in 2006 2 LEN 89 MADHYA PRADESH STATE AGKO INDUSTRIES DEVELOPMENT CORPORATION VS. SC. PANDEY wherein the Supreme Court has held thai "only because an qmployee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also Held that " the changes brought about by the subsequent decisions of this court probably having regard in the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisating and causourcing is evident, in view of the settled legal position , as noticed hereinbefore ."

19.But, I find since the Supreme Court has beld that termporary employees are not entitled to claito any rights for regularisation, merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case roust be considered on its own merit and the changes hrought about hy the subsequent decisions of the Supreme Court probably baving regard to the changes in the policy decisions of the Gour , in the wake of prevailing market economy, globalisation . privatisation and outsourcing is videat , I find the Petrioner is not cotitled to clain regularisasion or reinstatement in the Respondent/Bank as alleged by him. Therefore , I find this point against the Petitioner.

Puint No. 2:

The next point to be decided in this case is to what relief the Petitioner is entitled!

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitledto be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Peritioner is not entitled to any rehel as claimed by him . No Costs.

21. Thus, the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him, corrected and pronounced by me in the open court on this day the31st January. 2007.J

16. Relying on all these decisions , leamed counsel for the Respondent contended that since the Petitioner has not been appointed for regular post or has se been appointed in regular vacancy or sanctioned post, the Tretitioner is pul entitled to claim regularisation ofhis service . Further, when they have not been questioned the five seulements lentered into between the Respondent/Bank and l'ederation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not emirlead to dispute the same and they are estopped from doing so . Further . their prayer before the labour authorities wasonly to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances . after expity of the period mentioned in the settlements which were subsequently amendedby settlements, the Petitioners cannot now question cither the preparation of wait list of number allotted to them . Under sauch circumstances , it cannot be questioned by the Peritioner .

K.JAYARAMAN , Presiding Officer

Witnesses. Examined:

For the Petitioner : wwi SriM Ananda Babu WW2SrV . S. Ekambaram

For the Respondenr : MWI Sri C. Mariappan MW2Sri C. Kamalingam

Documents Marked:-

Ex. No.Date

Description

01-08-88 Хетоx copy of the paper publication in daily Thanthi based on Ex . Ml .

17. I find much force in the convention of the learned counsel for the Respondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also senlements entered intobetween the Respondent/Bank and Federation, al the time of reference, they have not questioned the settlement for the number allotted to each individual in the. wait list . Further, the Petitioners have not questioned the seltement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on accoun of mala fide, coisrepresentation , fraud or even curruption or nhei anducements . Under such circuinstances , I find the Petitioners pannot inw questing the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondea Bank has got sanctioned posts for temporary employees to be absorbed . I find the Petitioners আগ

W2 2004-88 Хетоx copy of the administrative guidelines issuedby Respondent/Bank for implementation of Fx . ML .

4919

भारत का राजपत्र अगस्य 4 2007/ आवण 13 , 1929

[भाग- खब्द ( ii) ]

26-03-97

W21

24-04-91

Xerox copy of the letter advising selection of part time Menial -G. Pandi.

31-03-97

W22

Хетох copy of the circular of respondent/ Bank 10 all Branches regarding absorption of daily wagers in Messenger vacancies.

Xerox copy of the appointment order to SriG. Pandi

W4 01-05-91

Feb. 2005

W23

Хатox copy of the advertisement in the Hindu on daily Wages based on Ex . W4.

Xerox copy of the pay slip of T. Sekar for the mouth of February , 2005 wait list No.395 ofMadurai Circle.

20-08-91

13-02-95

W24

Хеток сорpy ofthe advertisement in The Hindu extending Period of qualifying service 10 daily wagers.

Хегоx copy of the Madurai Module Circular letter abod Engaging tempoгагу comployees from the panel of wait list .

15-03-97

09-11-99

W25

Χετοχ copy of the circular letter of7onal Office, Chennai About filling up of vacancies of messenger posts.

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff.

25-03-97

09-07-92

₩26

Xerox copy of the minutes of the Bipartite meeting.

Xeros copy of the circular of respondent Bank to all Branches regarding idenrification of messenger vacancies and filling them before 31-3-97.

09-07-92

₩27

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work.

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general atkendumis .

07-04-86

07-02-06

W28

Хегоx copy of the service certificate issued by Pallavaran Branch.

WI0 01-10-91

Xerox onpy of the local Head Office circular about Conversion of part time employees and redesignute them as general attendants .

Xerox copy of the service certificate issuedby Guiody branch.

31-12-85

W29

16-08-95 Xerox copy of the service certificate issued by Guindy branch.

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

W12 18-03-96 Xerox copy of the service certificate issued by Quindy branch.

For theRespondentydameut-

W13 23-09-96

Lx.No.Date

Description

Xerox copy of the service certificate issuedby Quindy branch.

Хетоx copy of the settlement .

17-11-87

103-417-89 Xerox copy of the interview letter.

W14

Хегоx copy of the settlemeal

M2 16-07-18

WIS Nil

Хетол copy of the settlement

27-10-88

Xerox copy of the settlement.

M4 09-01-91

Xerox copy of the administrative guidelines in reference book on stali matters issued by Respondent/Bank regarding recruitment to subordinate care and service conditions.

Хетоx copy of the settlement

30-07-96

W16 Nil

M6 09-06-95 Xerox copy of the minutes of conciliation proceedings .

Xerus copy of the reference book on Staff matters Vol I consolidated uple 31-12-95.

MT 28-05-91

06-03-97

WI?

Хегох copy of the order in W.P. No.7872491.

MB 15-05-98

Xerox copy ofthe call letter fromMadurai zonal office for interview of mебелеет post -V. Muralikannam.

Хох copy of the order in O. P. No. 2787/97 ofHigh Court ofOrissa.

W18 06-03-97

10-07-99 Χετία copy of the order ofSupreme Court in SLP No. 3082/99 ,

Xerox copy of the call letter fromMadurai zomal office For interview of messenger post-K Subburaj .

MIO NEL

W19 06-03-97

Xerox copy of the wais list of Cheanti Module.

Xerox copy ofthe call letter from Madurai zonal officeFor interview of messenger post-J. Velmuгикал

25-10-99

M11

W20 17-03-97

Xerox copy of the order passed inCMP No.16289 and 16290/99 in W.A. No. 189399.

Xerox copy of the service particulars -J. Velmurugan

2218 G07-14 4920

THE GAZETTE OF INDIA: AUGUST 4, 28007/ SRAVANA 13 , 1929

PART -Str. kiⅲ ) नई दिल्ली, 19 जुलाई, 2007

to both parties. Both sides entered appearance and filed their clajm statement and Coumer Staternent respectively After the constitution of this CGIT - cum - Labour Court . the said dispute has been transferred in this Tribunal for adjudication and this Trihuanal has numbered it as I.D.No. 250/2004.

follows- 2. The Schedule mentioned in that order es as का.भा. 2176.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनकं कर्मकारों के श्रीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , 'घेई के पंचाट ( लंदर्भ संख्या 250/2004 ) को प्रकाशित काती है , जो केन्द्रीय सरकार को 197-2007 को प्राप्त हुआ था ।

[ सं. रल्ल । 2012/452/98 आईआर ( बी-1 )

अजय कुमार , डेस्क अधिकारी

New Delhi , the 19th July.2007

"Whether the demand of the workman Shri S. Sukumaran , wait list No.442 for restoring the wait list of temporary messengers in the establishment of State Bank of India and unsequential appointment thereupon as temporary messenger is justified? Si bo , to what relief the suic workman is entitled?"

3. The allegations of the Petitioner in the Claim Statement are briefly as frikows

5.0 2176.- In pursuance of Section 17 of the Industrial Disputes Act . 1947 ( 14 of 1947), the Central Governme hereby publishes the Award ( Ref. Nu . 250/ 2014orte Central Government Industrial Tribunal -cum Labour Court . Chemai as shown in the Annexure in the Industrial Dispurte between the management of State Bank India and their workmen , received by the Central Covemmerton 19-7-2007.

[No.1-12012/452/98 - IR (13-1 ] AJAY KUMAR, Tesk Officer

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-( UM -LABOUR COURT. CHENNAT

Wednesday , the 31st January, 2007

PRESENT:

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 250/2004

( Iincipal Labour Court CGD No. 190/99 )

in the matter of the dispute for adjudiation under clauseid ) af sub- section ( 1 ) und sah- section 2(A) uf Section of the Ladustrial Disputes Act . 1947 ( 14 of1947) , between the Management of State Rank of India and their workinen)

BETWEEN

Sri S. Sukumaran

: I Party Petitioner

AND

The Assistunt General Manager, 11 Party/ Management StateBank of India , 2.0. Chenmai.

APPEARANCE

For thePetitioner

: Sri V. S. Ekambaram ,

Authorised Representative .

For theManagement M/ s . K. Veeramani, Advocates .

AWARD

1. The Central invernment Ministry ofLabour, vide Order No. L- 12012/452/98-18 (B - I ) dared 12-3-1999 referred this dispute earlier to the Tamil Nadu Principal Labour Court, Cheanai and the said Labour Court has caken thedispute on its file is CGID No. 190/99 and issued noricey

The Petitioner wils sponsored by Ernpluyment Fxchange for the post of sub statif in Class TV cadre in State Bank of India and ine was given appointment as messen ريد after an interview and medical examination He was appointed on temporary basis at Thousand lights heanch from 1982. The Petitioner was orally informed that has services were a inure required. The employment of the Petitioner and others became subject matter belore Supreme Court in the form of Wrir Petition filed by Stare Bank Employees Uzun in Wris Perition No. 542/87 which was taken up by the Supreme Courr. The Respondent Bank. in addition to its compter , fled a copy of senlenen rider Section 180 reachedbetween management of State tank of India and All India Strec Bank uf India Stutt Federation and the settlement is with regardto abstin of Class IV lemporary workinen who were denied employnsent after 1985-86 were dansitied in the settlement was under consideration ance again and they classified The wurkmen under tree categories namely A , 31 inch C Though the classification was unreasonable . the RespondentBank trought to the notice of the Petetioner about the interview to be held through advertisements . The Petationer also submitted bus application in the prescribed format through Branch Manager of the thousand lights branch . He was called for an interview by a Committee appsimed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment But . the Peritioner was informed mally ko join at the branch where he iniually worked as a class IV employee . From 1982. the Petitioner has been wurking as a temporary messenger and sonse lime perfortring work in other branches alsu . While working on temporary basis in Hungambakkam hraneh, other advertisemear by the Respondent/ Bank was made regarding casual workers who were reported to he in service during the same periud . While the Peririoner was working as such. the Manager of the branch informed the Peviršuner orally an 21-3-1997 that his services are not required any mure and he need for artend the office from 141997. Hence, the Petitioner raised a dispute with regard to his inn ermployment . Since the conciliation ended an 4921

भारत का राजपत्र अगस्त 4, 2007/ षण 13, 1929

( भाग खाण्ड़ 3 ( ii ) ]

failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal . the reference framed did not satisfy the grievance of the Peririoner, he has made a fresh representation to Govt, το reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage hith in service as obtained prior to 31-3-1997 and to regularise him in service in due course . The Respondent/Bank took up 20 unreasonable stand that the service mod the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank, in engaged the Petitioner only in temporary services after the sehlement . The Petitioner was not aware of sectiement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlemeals Me repugnamu 10 Section 25G & 25H of the 1.D. Act The termination of the Petitioner is against the provisions of Para522(4) ofSastry Award. Even though the settlement speaks about three categories only a single wait list has heen prepared and the Respondent/Bank has been Regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments, leave, roedical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular , The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of peny cash orby directing him to work under assumed name or by both which amounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grani relief ofregular employment in Respondent/ Bank with all amendang benefits.

17-11-1987,16-07-1988,07-10-1988,9-1-1991 and30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3) of 1.D. Act . In berns thereof, the Petitioner was considered forpermanent appointment as per bis eligibility stong with similarly placed other temporary employees and the Petitioner was wait listed as candidate No.443 in wait list ofZonal Office , Chennai . So far 357 wait listed temporary candidates, out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporгагу messenger. The Petitioner was engaged only in leave vacancies as and when it Bruse , When the Petitioner having submitted to selection process in betans of Retticuments drawn as per retrenchment provisions referred to above. cannot porn around and claunts appointment . Such of those semporary employees who were appointed were engaged for more number of days and bence , they were appointed. Under the seulement, eamployees were categorised as A , B, and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous blockof 36 calendar months and under category ( C ) the temporary comployees who have completed 30 days aggregate temponty service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in my continuous block of36 calendar montias were to be considered. As per clanse 7. the length of teraporary service was to be considered for seniority in the wait list and it was also agreed thust wait list was to lapse in December , 1991 and the cut off date W extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994. The Petitioner has no valid and enforceable right for appointment . The Respondent bad implemented the voluntary retirement scheme and even the permanent vacancies stand substantially redured. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid teamрогу croployees were working in leave vacancies and not in regular permanent vacancies. In terms of aforesaid settlements , oul of 744wait listed candidates , 357 kemporary employees were appointed and since the Petitioner was wait listed at 443 be was not appointed. The said settlem.cuts were bonafidewhich were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Confecтвem of Permanent Status to Workmed ) Act, 1981 does not apply to Respondent/Bank and this Tribunal has nojurisdiction in catertain such plea. It is not correct to say that documents wod identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudications by this Tribunal itself is not maintainable . The Fecitioner was not in continuous service. Hence , the question of regular appointment /absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18( 1 ) and 18(3) of LD. Act in lien ofprovisions of isw, retrenchment and implemented by Respondent/Bank The clairn of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down io seniority. Dueto the business exigency, the Respondent Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was esponsedby State Bank of lodia Stali Federation which resulted in five settlements dated 4922

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 , 1929

PART 11-Sec . 3

Point No. 1:

31-12-94 were filled up against the waited list of teroрогагу employees and vacancics for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further , for circle of Chennai wait list of dailywages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees.After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence, for all these reasons , the Respondent prays to dismiss the claim with CORES. i

8. In this case , on behalf of the Peritineral s contended that the Trenitioner in this case and the Peritioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevan guidelines /circulars of the Respondent/Bank in permanent vacancies . In suburdinate cadre on temporary basis.After engaging them intermittently for some years . the Petitioner in this case and other Petitioners in the connected disputes were terminated without any повне . Since the Respondeam /Bank terminated several remporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petitionbefore the Supreme Court toprotect the legall azul constitutional rights of theworkimern concerned and while the matter was pending in Writ Petition No. 542 ( civil) 1987. the Respondent/Bank hurriedly entered into a settlement on the issue of absorbtion ol temporary employees and filed it before the Supreme Court as the time of tinal hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Mfl . The Petitioner in Ibis case and the Petitioners in the connected cases arracked this settlement as it is not binding on them on the ground that theyhave been interviewed and selected in the permanent vacancy and Responent/Bank without any intimasori ur notice denied an opportunity or work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchiment as unjust and illegal and they funtber prayext for reinstatement with hack wages and other altendant benefics .

5. to the addisonal claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Responden/Bank for selection of candidate for appoiocment in the post of messenger and other class 19 post . He was engaged in the messenger post in the subordinate cadre of the Respondem /Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is dusty bound to regularise the services of the Potitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondan Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioned be engaged even in menial category, thus , the Respondent/Bank imposed total ban for bis future employment. Even though there were sufficient number of vacancies in class IV category. the RespondentBank deliberately delayed in filling up the vacancies by the wail listed workmen with ulterior motive. The Respondent/ Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies , Hence , the Petitioner prays that an award may be passedlin his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respundeat, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondept/Bank. Even in the Writ Petition before the High Court in W.P No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are coritraryto the rights of the Petitioner . Hence , the Petitioner prays that an award maybe passed in his favour.

7. In these circumstances , the points for my consideration are :

(1) "Whether the demand of the Petitioner in Wait List No. 442 for restoring the wait list of temporary messengers . In the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified? "

(i ) "To what relief the Petitioner is entitled ?"

9. On behalf of the Petitioner, it is contended thai these Petitioners were recruited as temporary employees in the Respondent /Bank under the guidelines and cimculars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case. the Petitioner is not howuad by settlement under Section 18( 1) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stared that the Petitioner has not worked for more than 240 days in a coπεί ทนกร period of 12 calendar months and was not in coatiouvus service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of डागमन instructions and circulars/ guidelines issued by the Respondent/Bank to the effeer that lemporary employees at branches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitiones working for 240 days does per arise at all . Further , they have invoked the relevant provisions of Chapter V A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 25G and 25H are very much applicable to the Petitioners wou are retrenched messengers and are eligible to be reinstated . Leamed representarive fo [ भमा खण्ड ( ii ) ]

4923

भारत का राजापत्र अगस्त 4 श्रवण 13 , 1979

the Pecitioner contended that in 1996 LAB & IC 2248

CENTRAL BANK OF INDIA VS. S. SATYAM AND OTTERS the Supreme Court has held that Chapter V-Aof the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 251 applies but for all cases ofretrenchinent. Therefore, the application of Section 25H camot be restricted only to one category of reareached workmen . Therefore, the onntation of the Respondenu/Rank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex . W2 . Wa and Wk as well as lis . MB which constituteftellare to the cuncular instructions of the Respondent /Bank issued from time to time in commection with the implementation of the set.lements on absorption and which are statutory in charauzer . Further, a combinel study of Ex.Ml and the everments of MWI and MW2 and their testimonies during the cross -cxamination will clearly show how the bank has השיט araw deal to the Petitioner from the beginning linking, his future with the settlements . Further , Clause 1nflix MI deuls with categorization of retrenched temporary employees into ' A, B und C " , but this carcentization of A. B& C' is quite upposed to the doctrine of ' last come first poor first come- last po angl therefore, the coregorization in Clause 1 is illegal . Clause I ( a ) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work inleavefcasual vacancies ol messengers, farashes , cash coolies . water boys , sweepa ete, for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Keterence Book on Staff matter's. opy of which is marked as Fis . W8 . Further, the appointment ol duily wage basis for regular messengeria' jobs cue . are strictly prohibited as per hank's circulars /instructions. In such circustaimes , the absorption of casuals along with the eligible categories 16 mot valid . Therefore,these persons wilies were engaged by the Responden / Bank on casual basis should not be given permanent appoiatament in the bank service . Those casuals were given more heneficial treatment in the matter of arriving at qualifying service fo interview and selection. Bur, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex ,W2 four types of waiting lists have ro be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case. Those candidates under Ex.M10 ) were found suitable for appointment as messengers and sweepers . Even MW. is unable to say as to when the wait list Ex M10 was prepared, but it is mentioned in Ex M10 that it was prepared based on the settlement dated 17-11-37, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27 10- KK W aut included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except bis hald Nialemem . Further, according to MWI wait list under

F.M10 was prepared on 2-5-92 but there is no pleading in theCounter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order davet 23-7-99 in W.P.No.7832 if 1991 , which is marked as an exhibit , in which it is stated that ' ir is clear that the 1987 settlement was concerned with the temporary class TV employeeswho were paind swale wages as per Bipartite Settlemeat while the 1988 settlement dealt with daily wager in Class TV category who were paid wages daily on mutual agreement hasis. In such circumstances , as rightly contended the Respondent are not justified and combmed the list of candidates covered imder 1987 settlement and 1988 settlement since they fnatnext 1wo distiner and separate classes and they cannot treat one class and their action undoubtedly amounts to violason of Aniele 14 ofCConstitution of India . Further . the averenerid of MW and the statements in Coudrer Starement are rary Har alive and it is nothing but a lesale allempt to wriggle out the illegality cominsimed or perpetrated by the Respondent/Bank hy combing equals with unequals . It is further contended on behalf of the Tuner that as per deposition of MWI wait list under Ex.MIO comparises of both messengerial and non- messengerial candidates .While the temporary employees were appsupled after due process of selection and were paid wages on the basis of industrywise settlement, it is not sa in the case of casuals . Therefore, both belongs to two differem aul distanct categories . But. Ex.M3 provides lor the somе погты 10 she aspals as in the case of tempurary employees in the matter of absorption . Therefore, it is vislative of Arlude 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait last is but inconformity with the instructions of Ex.M2 and non-preparation of separate panels amounts to violation ocular. Secondly, it has 11 been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1991. Futhernwire , no wall list was released published even after the Court order in WMP No. 11932 91 in W.P. No. 7871/91 directing the Respondent/Bankto release the list of successful candidates pursummito the first advertisement published in The Hindu dated 1-8-88. Furthermore, wait laxt under Ex.M10 does not carry particulars about the candidates date of initial appointment and Ibe number of days pur in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . M I was not produced at the time of conciliation proceedings held during the year 1997-98 bekkd of Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . MIO before this Tribunal morking it as a confidential document . 11 is further contended on behalf of the Petitioner that though the Responden Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told ai the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device PARE IT---SFC . 1 4924

THE CAZETTE OF INDIA ALGUST 4 , 1007/ SRAVANA 13 , 1929

of Responden Back has se applicarion to the Petitioner's case. The Petitioners have completed the serve of 240 day's and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Dispines Act . berefore, their retrenchment from service is illegal and against the mandatury pprovisions of Section25 and therefore, they are dicemed to be in continuous server af'the Respondent Bank and ley be witled to the benefits under the provisions of 1.D. Act 11 is further contended or. rehalf of the Pentiumer that though some ofthe Positioners in se connected 1.Ds have not completed 240 days , sirke the Respondent Bank laken into sonsiderarinn and not included the Sundays and paid holidays as days on whith the Petaliens have actually worked and hence, they have also completed 240 days in a period of 12. çaleraku mouths. He also relied on the rulings reported in 1985 11 LJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL ΒΑΝΚΙNG CORPORATION the Supreme Court has held tha: the expression "actually worked under the employer cannot mean that those days unlywhen the wurkkarten: worked with hammer . sickle or pen but must песеssarily comprehend all titse days duriste sluch they were in the raplovment of the craployer and for which he had heen paid wages either under express or implied contract of service or by compulsion of statule . sandos oulas etc. It is father, argued that call letters produced by the Petitioner will clearly prove that the. Kespondent Bank has conducted the interview and selected thetemporary employees who have reported to have submitted their application for absorption as per the nanik's circular and theretore . their Telrerstment is illegal In all these cases, the fritunners were in employment as said staff in early 1980s but were denied further engagement on secount of settlements/ lapsingel wail lists in OLI LO Paese Petitioners some of them have completed 240 days and more in a connudas period of 12 calendar months and they are in age group of 40 to 50 years and for nu fauli of linears, they tind thesiselves ausded in life midstream. They have also ant gainfully employed . In such circumstances .This Tribunal has to pass an award in their Lamur.

1411511inst this , the learned senior counsel for the Responden Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioneг in this case and the Pelihuner : in the nected disputes were put in tinukus service Hence , the question of regular appoimment/ absorption does not arise at all und theu engagement was not authorised . Further , the J'etitioners sic estopped from making claim as they had accepted the settlements drawn under the provi נטאתטנצ Serien 18110 18:30 Hee (D. Aca, in lieu of the provisions of law and implemented by the Respondent Bank and the clanen of the Petitivaters are bonatide and are made willıllerine anntive. Further , they have enncealed the material facts that the Petitioner was wait listed as per in rake the our of the principal clause 2 ( 00 ) of the 1.D. Act. 1947.Though the Petitioner's work in the Responden and hughthe Brexitioner has performed the duties continuously which is still in existence. the categorisation as such is not valid and the prov า รวบ ต ร Sestry Awatıl are also violated . Further , she represermative of the Petitioner relied on the rulings reported in 19854 SCC 201 JID. SINGIIVS RESERVE BANK OF INDIA ANDOTTIERS wherein the Supreme Court has held that "ko employ workomen as 'badlies casuals or temporaries and to continue them as such for many years with the nbjcen of depriving theath of the starus and privileges of pennarient workmen is illega!." learned representative further contended char Ex.M 10 wait list bas not been prepared ine auxtonlance with principle of venirsity be the legal sense, since the selected candidutes with longest service should have priority over those who joined the service letter and therefore , the wait list der Ex . MI which has been drawn up is comrary to law and also bad in low Thus , the Respondent Bank has по acred in accordance with the law and the spirit of the settlement. hut in utter violation and in hreach of it. Though clause De of Ex . M4 states that candidates found suitable igr permaneis appoinunem will be offered appointment agains existing / future vacancy anywhere in mostule or circle and 100 case , a candidate fails to accept the offer of app ! posting istrin the prescribed period , he will be derma to have refused it and the name shall stand deleted ויח The respere pariel and he shall have rum father claim for 1x: ing considered for permanent appointment in the bank . TheRespourlenr/Bank has nor ' produced any document show how he has arrived as the sensority and till date, ilis a mystery as to what that senior was and there is no documentary evidence in support of the averment and also for the aversment of MWI . Therefore , the termination of the Petationes hur was an regular service of the Respondent Bunk as erberary , mala fide and illegal and the Respondent Hank has hul acted in accordance with the rerms 01 settlemeans on absorption of temporiгу employees .Пед theRespondent/Bank has produced Ex. M6 which aileged to be a copy of minstes of concotiation proceedings date: 6-7.5 refere Regional Labour Commissioner ( Centrall . Hyderabad ir is neither a 18 ( 3 ) settlement nor 1213 ) senlemem is claimed by the Respondent/Bank whaays arly withtegar i Ml Lo 4 neade in πεπης σε Εν . Μά6. Though the Respondent Bank produced Ex . 317 and Mli interim orders passed by High Court of Modras in MP No.11932 in W.P. No. 78724 ] devel 10 have any relevance when the main writ has been dispuveil of in the year 1999 and therefore, they do not have any bearing in the case of the Peririoner . Further , though the Respondent Managernen las examined two witnesses .the depositionef manasenien witnesses during the cross- examination had become apparent that they have mis personal knowledge about the sellernents which are marked asEx . MIMS Above all , though the Respondent/Rat has referred to voluntary retirement scheme . Is the RespondentBank it was implemented only in the year 2001 and it constitutes post reference perind and hence evidence 4925

भारत की राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[ भाग - खण्ड (ii) )

in case ofthe first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable of unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is & dispute that the seulement is not bona fide in nature or that it has been arrived ar on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which am appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must he fair and reasonable ." Relying on all these decisions , leamed counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one aroong them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued chat no union of the bank has questioned the settlement und in such circumstances , it cannot he said that it is not bioding on them and he is estopped from disputing the sarme.

11. Learned counsel for the Respondent further contended that though the reference made in this caseand ocher connected disputes is ' whether the demand of the woricroan with wait ist No. given for restoring the wait lisa of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?" The Peritinner contended that the retrenchument made by the Respondent/Bank is nut valid and he has to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference marle by the Govt is not valid . Further , in this case, the Court has to see whether the restoration of wait list can be made as contended by thePetitioner and not reinstatement as alleged by the Petitioner in the Claim Statement

12.But, as against this on behalf of the Petitioner it is contended that mere wording of reference is out decisive in the matter of tenabiliry of a reference and he relied onthe culings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JULLA HOTELAND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the KeralaHigh Court has held that " mere wording of reference is not decisive in the matter of tenabiliry of a reference. Lven though the Tribunai cannot go beyond the order of reference, if points of difference are discernible from the material before it . it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman ko hardship involved in moving the machinery length of his engagement and could not be absorbed us the was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger. l'urther , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that The worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent Bank and the federation were bonafidewhich were the only workable solution and is hinding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, thePetitioner is estopped frore questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 199 ] [ L] 323 ASSOCIATED GLASS INDUSTRIES LTD VS. INDUSTRIAL.TRIBUΝΑΙ . Α.Ρ. AND OTHERS sherein under section 12 ( 3 ) the unk entered into a settlement with the management settling the Clainte 11 workmen and the workroen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign volumarily .But the Andhra Pradesh High Court has held that in the ubsence of plea that the settlement reached in the course of concitiation is vitiated by fraud , misrepresentation or coercion , the senlemem is binding vn the workmen . " Learned counsel for the Respondent further relied on the rulings repoped in 1997 11111189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the DivisionBench of the Bombay High Court has held that "therefore & settlement arrived at in the course at the concitaation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same . To that extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage un individual employee or a minority unikn firum scuttling the settlement ." It further beld that there may be exceptional cases, where there may be allegations of mala fides, fraud or even corruption or other inducerents . But, in the absence of such allegations, a settlement in the course of collective butguining is entitled to due weight and considerarion." Learned cumsel for the Respondent further relied on the rulings reported in 1997 1 [ 1 ] 30% K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the SupremeCourt has held that " settlements are divided into 1wn caregories namely ( 1) those arrived at outside the conciliation proceedings under section 18( 1) of the 1.0. Act and ri ) those arrived at in the course of conciliatino proceedings under section 18( 3 ) . A settlement of the first category has limited application and hinds merely parties to it and setdement of the second category made with a recognised majority union has extended application as it willbe binding on all wurkmen of the establishment . Even 4926

THE GAZETTE OF INDIA : ALGUST 4, X0 /SRAVANA 12. 1924

[PART I-Sec . 3 ( i )) again." 11 fumher held at The Tribunal should look into the pleading and find nur the exact nature of pleading of the Petitioner to find out the exact mature of dispute instead of refusing to answer the reference on merics . " Further , he argued that the Tribunal has gol power to go into the question whether the Petitioner is to be reinstated in sen vare or not for which he rebed on the rullings reponed in 1998 LABIC 1664 MANSAGNATIAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mesat that it cannot look into the pleadings of parties ."He also relied on the rulings reported in 1998 1.AIS JC: 1,5417 A.SAMBANTHAN VS. PRESIDINGOTIKER LABOUR COURT. MADRAS, wherein it has been held that it has been repeatedly held that the Labour Cour should nut attempt to consider the neder Tider reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court bus held that " the Tribunal has jurisdiction 10 consider all incidental matters also and the urder of reference should not be construed in the manner whah would prolong the industrial adjudication . The Tabour Court is expected to decide tae real nature of (disputes between the parties and with that object in view, it should consider the order of reference in a fait and reasonable manner , though the order of referenec is int happily framed nor was it framed to the high expociation of the TalwILUT Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not from the pleadings it is clear that the Petitioners lave been retrenched from the Responilent/ Bank and therefore, this Tribunal con kok to the pleadings ofthePetitioners and can decide whether the Petirioner is entitled to he reinstated in service as alleged by him and winether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondeat that it is beyond the scope of reference is without any substance.

13. 1 find some force in the contention h representative for the Petitioner . Therefore, 1 food this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him ur not? But , I fik hit the settlement was validly entered imo between the Respondent / Rank and Federation and since it is not questioned by any of the unions of the Respondenu Bank, I find the Petitioner is not entitled to question the settlement .

inthas appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service an an existing or a future vacancy ." In that case , pruning of select list no redan number of vacancies was made In view of the impending absorption of sream surplus staff and a policy decision has hoen taken ro reduce rise

भारत का राजपत्र अगास्त 4, 2007 / श्रवण 13 , 1929

(c) hewas not eligible and qualified for the post at the time noly daily wage employees and have no right to the posts, their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp) 754wherein the Rajasthan High Court has held that " Under Section 25G of the LD.Act retrenchment procedure following principle of "last come - first go' is not mandatory but only directory, on sufficient grounds shown, the employer is permittedto depart from the said principle retrenching seniors and retainingjuniors . Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juzziors were made permanent by the Respondent Bank. Any how , if the Pentioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circurostances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in rouent decision reported so 20064 SOC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that merely because a temporary employce Or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to he absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointnient was not made by following a due process of selection as envisaged by relevant rules . It is not open to theCourt to prevent regular recruitment at the instance of termporary employees whose period of employment has come in an end or of ad - hoc employees who by the very nature of their appoinament, do ont acquire say right" Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment. He accepts the croployment with open eyes. It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . Buton that grouod alone, it would not be appropriate to jenison the constitutional scheme ofappointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got croployed should be directed to be continued permanently . By doing so , it will be creating wrother noide ofpublic appointment which is not permissibuc. Further, the Supreme Court while laying down the jaw, has clearly held that " unless the appointment is in terms of therelevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee ...... It has to be clarified that merely hecae a temporary employee or a casust wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or mad permanent merely on the strength of such continuance. If theoriginal appointment was not made by following e due process of selection as envisaged by relevant rules. Further, in CDJ 2006 SC 443 NATIONAL FERTILIZERS I.TD. AND of his appointment, ( d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders : Moreover , from the mere cominuation of an ad -hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may bejustified only when such continuance extends to several years. Further , there can he no rule of thunb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have pot in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The reliefmust be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable .Thus, the Supreme Cour set aside the orders nflower Courts .He further relied on the decision reported in 1997 TISCC 1 ASHWANI KUMARAND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Beankh of the Supreme Court has considered the above regularisation of appointinent in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or un ad-boc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never suryive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility It would amount re decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid conformation. The so called exercise of confirming these employees , therefore, remained a nulliny ." Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies und they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SOC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that " they are temperary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrencbrocot under the LD . Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are

3218 -GAC7-15 1928

THE GAZETTE OF INDIA : AUGUST 4.2007 / SRAVANA 13 , 1929

OTHERS VI . SOMVIR SINGH , wherein the Supreme Court has held thal "regularisation furthermore , is not a mode of uppointment and if appointment is made without following the rules . the same being a nullity, the question of sunlimmation of an empinyee upon the expiry of purported period of pighation would nut arise . " Further , in CDJ 2006 SC: 395 MUNICIPAL COUNCIL , SUJANPUR W. SURINDER KUMAR the Supreme Court has held that it is not dispred that the appointment of the Respondent was not in sanctioned post. Being a "Stale ' wathan the meaning ul Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was hound to follow the recruitment rules . Any recruitment maiz in violation of saçlı roles as also in violation of tional scheme enshrined under Article 14 and th the Constiturา กกก พบ น ld be vod in law. " Further , an 2006 2 LIN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held dhat by because an employee had worked l'or more than 240 days on service by that itself would not woofer any legal ragh usson harm to be regularisect in service ." The Supreme Court 4: held that " the changes beaught about hy the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt, an the ake of prevailing market economy , globalisaticın , prevarisarion and outsourcing is evident, in view of the seitled legel position, as noticed hereinhefure

PART I- SEC . 3 ( її), inducements . Voder such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employces to be absorbed, I find the Petitioners cannot salenie je regularisation in services of the Respondent /Bank.

IR. Further. he represemarive for the Petitioner contended that in a similar cases , thisTribunal had ordered fur reinstatement with back wages and these disputes are also similar in nature au hence , the Petitioners are entitled for the sinne relief.

19. Bur. Find since the Supreme Court has held thu temporary employees ure not entitled to claim any rights fua regularisation , merely because they have completed 240 days ul continuous service in a period of 12 calendar months and the Supreme Cour has also held that cach case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme L'ourt probably having regard to the changes in the policy decisinas of the invt . in the wake of prevailing marken economy. globalisation . privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondeat /Rank as alleged by him. Therefore . I find this point against the Petalioner

PointNo.2:

The next point in the decided in this case is ro whar relief the Tetivinaci is enrinlod?

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely מוט the sh of such sindirisence of work . I find the Pelitones is nut entitled to any rebelas clanned by him. No Costs.

21. Thus , the reference is answered accordingly .

(Doctatedto the P.A.. transcribed and typed by him , corrected and pronounced by me in the open port on this day the 31st January . 2007.1

K JAYARAMAN , Presiding Officer WitnessesExamined:

For the Petitioner

1 6. Relying on all these decisions , learned counsel ine Respondent contended that since the Petiririemer heeh appointed for regular post nor has he been appmated in regular vacancy or sanctioned post . the Petit oner is not entitled to claim regularisation of his service. Pother, when they have not heen questioned the five sellutients entered into between the Respondent/Bank arul jinderation and since they have not questioned the winstareparedby the Responden /Bank, they are not encialed to dispene the same and they are estopped trem dring se . Father , their prayer before the labour authorities wes only to restore the wait list and also for appointmeix sherean as temporary messenger as per wait list . Under much circumstances , after expiry of the period mentioned ne seizletbenes which were subsequently amended by י,וחיייי e Petitioners cannot now question either the copertinacisumber allotted to them . Lloder such circumstances , it cannot be questioned by the Petitorer.

1.1ch force in the contention of the learned counsel tac Respondent . Itusugh in the Claim Statement, the Fetitioners have made so many allegations with regard IC of wair list and also settlements entered so between the Respondent/Bank and Federation . at the linne freferente dikey have not questioned the settlement nor c qumber allotted to each individual in the wait list. lie, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona Even nature or it has been arrived at on accouan of mala fick misrepresentation, fraud or even corruption or other

WWI So S. Sukumaran ww2Sriv S. Ekumbaram For the Respondeer MW1Sri C. Mariappan MW2 Sti C. Ramalingarn Documents Marked:-

Ex .No. Date

Description

30-05-88 Xerox copy of the Madras L.H.O. Store Circular No. PER/1K/ 18/88 regarding wait Lists and projected vacancies .

Xerox copy of the notice to the temporary employees based on the Settlement ch . 17-11-1987 Daily Thanchi".

4929

भारत का राजपत्र अगस्त 4, 2007 /श्रवण 13, 1929

{ भाग -सखण्ड 3(ji) )

34-4-91 Хегох copy of the Madras 1.HO Circular No. 6(91-92) regarding absorption of dailywagers in messenger vacancies.

W4 01-05-91 Хетох copy of the Notice to the Daily wagers based on the Settlement dated 27-10-1988 "TheHindu" .

20-08-91 Xerox copy of the FortherNotice to the Daily Wagers extending the period of qualifying service of eligibility-"The Hindu".

W6 15-03-97 Χετοι cupy of the Chennai ZonalOffice letter about filling up of vacancies of sanctioned massenger posts for the years 1995 & 1996.

W7 25-03-97 Хегоx copy of the circular of Respondeat/Bank to all Branches regarding indentification of massenger vacancies and filling them before 31-3-97.

Xerox copy of the Casuals should not be engaged to do messengerial wurk- Reference Book on Staff matters (consolidated upto 31st December, 1993) 07-12-84 Xeгox copy of the service certificate issuedby Thousand Light Branch, W10 14-08-96 Xerox copy of the service certificate issued by Ayanavaram Branch. 1112-02-06 Xerox copy of the service certificate issued by Anna Nagar West Brarich.

W12 31-06-97 Xerox copy of the service certificate issued byNungambakkam Branch .

03-06-97

W13

Xerox copy of the service certificate issued by Saidapet Branch.

W14 M

Xerox copy of the Reference Book on Staff Maners consolidated upto 31-12-1984Volume Chapter LXVII- Теmроrагу employees in the subordinate cadre Guidelines.

Xerox copy of the Reference Book on Staff matters consolidated upto 31-12-1993 Volume II, Chapter 39- Guidelines for appointment of kempоnагу employees.

06-03-97

W16

Xerox copy of the call lester from Madurai Zonal Office for interview of messenger post-V. Muralikannan .

W17 06-08-97 Xerox copy of the call letter from Madurai Zonal Office for interview ofmessenger post-K. Subhuraj .

W18 06-03-97 Xerox copy of the call letter from Madurai Zonal Office For interview of messenger post-J. Velmurugan.

17-03-97

W19

Xerox copy of the service particulars- J.Velmurugan

₩30 26-03-97 Xerox copy of the letter advising selection of part time Menial- G.Pandi

31-03-97

W21

Xerox copy of the Appointment Order to .Pandi

W22 Feb 2005 Xerox copy of the Pay Slip ofT. Sekar for the month of February 2005 wait list No.395.

13-02-95

W23

Xerox copy of the Madurai Module Circular Letter engaging temрогагу employees fromthe panel of wait list .

09-11-92

W24

Xenx onpy of the Circular No. 28 Norms for sanction of messenger staff. 09-07-92

W25

Xerox copy of the Minutes of the Bipartite Meetting .

09-07-92

W26

Xerox copy of the Settlement for implementation of murros creation of part time general Attendants.

WZ7 07-12-06 Хегох copy of the Conversion of part time comployees and designate them as General Attendants.

31-12-85

W28

Xerox copy of the Staff circular: PER/ TRAS /RS-Temporary employees .

FortheRespondent/Management:-

Ex. No. Date

Description

Χετοι cupy of the settlement 17-11-87

Xerox copy of the settlement .

16-07-88

Хегоx copy of the settlement .

27-10-88

Xerox copy of the settlemeal M4 09-01-91

Xerox popy of the settlement .

30-07-96

09-06-95 Xerox copy of the minutes ofconciliation proceedings.

M7 28-05-91 Хегоx copy of the order in W.P. No. 787291 .

MB 15-05-98 Xerox copy of the order in O. P. No. 2787/97 ofHigh Court of Orissa .

10-07-99 Хегох copy of the order ofSupreme Court in SLP No. 3082/99.

MIO NE

Xerox copy of the wait list of Trichy Moduke.

25-10-99

MIL

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No.1893/99.

4930

THI: GAZETTE OF INDIA: AUGUST4 . 2007 /SRAVANA 13 , 1929

नई दिल्ली , 19 जुलाई , 2007

का. आ. 2177.औयंगिक विवाद अधिनियम , 1947 ( 1947 का (4 ) को धारा 17 के अनुसरण में , केन्द्रीय सरकार, स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारां कं बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरणः श्रम न्यायालय , चेत्रई के पंचाट ( संदर्भ संख्या 249-2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 जी प्राप्त हुआ था ।

[सं एल 12012/451 /98- आईआर ( बी 1 ) ; अजय कुमार , डेस्क अधिकारो NewDelhi . the 19th July ,2007

5.0 . 2177 , to pursuance of Section 17 of the Justustrial Dispures Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 249: 30041f theCentral Govermical , Industrial Tribun Labour Court, Chennal as shown in the Annexure in the Industrial Dispute between the managemeru of State Bark of India and their workmen , received by the Central Govemmen 19-7-2007.

No. L-12012/451 /98-1R (B - II ] AJAY KUMAR, Desk Officer

ANNEMURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM -LABOUR COURT, CHENNAI

Wednesday, the 31st January , 2007 PRESENT:

Shri K. JAYARAMAN , Presiding Officer Industrial Dispute No. 249/2004 Principal Labour Court CGIL No. 188/99) (In he maken of the dispute for adjudiation under clausenud ! ot sub - secrion iL ) and sub - sootina 2 ( A) of Section 10 of the Industrial Dispartes ACL, 1947 ( 14 of 1947 ) , between the Managcinurit of State Bank of hudia and their workmen )

WETWEEN

Sr. J. T .. Alexander

[JA 11-- S . 3(1 ) referred this dispute earlier to the Tamil Nadu Principal fabourCourt , Chennai and the said Labour Court has taken thedispute un its fele as CGID No. 188/99 and issued notices lo both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively . After the constitution of this COTS cum labour Court . the said dispute has heen transferred to this Trihumal lur adjudication and this Tribunal has numbered it us I.D.No. 249/2004.

2. The Schedule mentioned in that order is as follows:

" Whether the demand of the wurkman Shri M. Dhansuruj , wait list No.461 for restoring the waat list of temporary messengers in the establishment of State Bank of India and consequential appointment, thereupon as temporary messenger is justified ? If so , to whar relief the said workman is entitled?"

3. The allegations of the Petitioner in the Jasm Statement are brierly as fuilous :

Party/Petizioner

AND :

TheAssistant General Manager, I Party Management State Bank of lodia. 2. О. Channa ,

APPEARANCE

For the Petitioner

: SriV S. Ekambxuram, Authurised Representative.

For theManagement :M/' s . K. Veeramani . Advocates

AWARD

. The Central Government Ministry of Labour , wide Order No. 1. 12012/451 /98 - JR (B1) dated 12-3-1999 The Petitioner was sponsured by Employinent Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger afles an interview and medical examination . He was appointed on temporary basas at Tamburam branch from 9-6-1984 . The Menonetas orally informed that has services were no more required . The non- employment of the Perigioner and others became subjet matter before Supreme Courn in the form of Wria Petition Bled by Stare Bank Employees Union in Wall Petition No. 5-12/ 87 which was taken up by the Supreme Cout . The Respondent/Bank, in addition to its coumer , filed a copy of sendement under section 18 ( 1 ) reached between management of Stare Bank of India and All India Starc Back India Staff Federation and the seules is with regard to absorption of Class JV Tempurary workmen who were denled employment after 1985-86 were classified in the selllement was under enasideration once again and they classified the workmen under three categomes namely A. B and C. Though the classification was unreasonable . the Respondent/Bank brought to the nutar of the Petitiones ahnut rae intervew to be held through advertisements . The Petitioner also sunminted his applicating in the prescribed format through Branch Manager of the Manaadi branch . He was called fur ar anterview by a Committee appointed by Respondent Bunk in this regard . Bon , they have not informed the resul oi interview and sisn with regard to appointment . Bur .tlse Petitioner was informed crally to join at the branch where he initially worked as a class IV employce . From October , 1981. the Petitioner has been working as a remporary messenger and sumetime performing work in other branches aisu . While working, cat tempurity basis in MRI . branch, another advertisement hy the Respondent Bank was made regarding casual workers who were reported to be in service during the same perind . While the Petitioner was working as such , The Manager of the branch informed the Petitioner orally mi 31-3-1997 that his services are ol [ भाग-रनण्ड 3 ( ii) ।

4931

भारत का राजपत्र अगस्त 4, 2007 / রমেন্স 13 , 1929

required any more and he need not attend the office from 1-4-1997.Hence, the Petitioner raised a dispute with regard to his non - comployment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribuna ) , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt .to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as nhtained prior to 31-3-1997 and to regularise him in service in due course. The RespondenuBank took up ал unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of senilement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the sertlemenis ate repugnant to Section 250 & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of Para 522 (4) of Sastry Award. Even though the settlement speaks about three categories only a single wirit list has been prepared and the RespondentBank has been Regularising according to their whion and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing bira to work under assumed name or by both which amourats to unt'air labour practice. The wait list suffers scrious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent Bank with all attendant benefits .

not arise. 4. As against this, the Respondent in its Counter Statement alleged that reference made by the Govt. for udjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence, the question of regular appointment/ absorption The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18( 1 ) and 18( 3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondeat/Bank The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent Bank engaged the temporary employees for performaалое of duties as inessenger and such engagements were prevailing from the year 1970 onwards . Such of those

employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987,16-07-1988,07-10-1988,9-1-1991 and30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under section 18 (3 ) of D. Act. In terms thereof , the Petitioner was considered for permanent appointment as per bis eligibility along with similarly placed other termporary employees and the Petitioner was wait listed as candidate No.720 in wait list ofZonal Office ,Chennai. So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrrochment provisions referred to above, cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement , employees were categorised as A, B and C. Considering their remporary service and subjectto other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B ) the temporary employees who have completed 270 days aggregate temporary service in any contimous block of36 calendar months and under category (C ) the temporary employees who have completed 30 days aggregate temporary service im any calendar year ofter 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered. As per clause 7, the length of kanporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upro 31-12-1994 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implernented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid tempoгвгу employees were working in leave vacancies and no regular permanent vacancies . In terms of aforesaid settlements, out of 744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listed at720 he was not appointed. The said settlements werebona fidewhich were the naly workable soluion and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to he rejected . Further, the said settlements were not questioned by any union so far and the settlements of hank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferuent of Permanent Status to Workmen ) Act 1981 does not apply so Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner was verified 4932

THE GAZETTE OF INDIA: AUGUST4, 2007/SRAVANA 13, 1929

before the Petitioner was engaged. It is also not currect tu say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upłu 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages casual labour . Further . for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wain list for the appointment of temporary employees .After the expiry of wait list , the Petitioner hus no claim kor permanent absorption. Hence, for all these reasons, the Respondent prays to dismiss the claim with costs.

5. In the additional claim statemeal , the Petitiones contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria ser our by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class TV post. He was engaged in the messenger post in the subordinale cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the RespondepBank is Juty bound to regulatise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus, the Respondent Bank imposed total bao for his future croployroont . Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wail listedworlpnen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen sccording to their whims and tances. Hence , the Petitioner prays that ad award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Couster Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Feddration were under section 18( 1 ) of the Act and not under section 18( 3 ) of the Act . As per recruitment rules of the Respondent/Bank , recruitment of class TV staff in the Respondent/Bank is in accordance with the instructions taid down under codified circulars of the Respondentu Bank. Even in the Writ Petition before the High Court in W.P.No.1872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence, the Petitioner prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration are :

(1) "Whether thedemand of the Petitioner in Wait Lisr No. 737 for restoring the wait list of temporary messengers in the Respundenv Bank and consequential appointment

PART II-SH . Зат Thereupon as temporary messenger is justified?"

(a) "To what relief Ive Peritioner is entitled? "" Point No.1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industriat disputes havebeen sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in tertus ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. Alter engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since theRespondent/Bank terminated several temporary employees in . the year 1985, the State Bank Employces Union had filed a Writ Petition before the Supreme Cours to protect the legal and onstiturionet rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption vi temporary employees and filard it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner an thas ca und the Peritisciners in the connected cases artacked this settlernent as it is not binding on them on the ground that they have been interviewed and selected in the permanen vacancy and Respondent/Bank without any intimation or notice denied at opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labous authorities and they questioned the retrenclument as unjust and illegal and they funther prayed for reinstarement with back wages and ugher attendant benefits .

9. On behalf of the Petitioner , it is contended thar these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bauk from sime to time and further, the saine guidelines carry the procedure for regulurisation of service of the remporary employees and any seulement in this regard is redundant and in any case. the Petitioner is not bound by sellement under section 18 (1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondem Hank has stated that the Petitioner bas not worked for anore than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17 11-1987 , therefore , they have no valid and enforceable right for uppointment , in the wake of strict instructions and circulars / guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exceeding 200 days , hence the question of Pelilioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V A of the 1.D. Act and it is preposterous to onntend that the 4933 [ भाग खण्ड (ii ) ]

भारत का रानपत्र अमस्त 4, 2007/ ण 13 , 1929

Peritioner has no valid and enforceable right for appointment as Section 25G and 25H are very much applicableto the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 1AB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has heild that Chapter V-A of the J.D. Act providing for retrenchment is not enacted only for the benefit of the workmen towhom Section 25F applies bur for all cases of retrenchumem . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workroro. Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that on behalf of the Petitioner that Ex W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation ofthe selllements on absorption and which are statutory in character. Further , a combined study of Ex.Ml and the avermens ofMWI and MW2 and their testimonies during the cross- examination will clearly show how the bank bas given a raw deal in thePeritinner from the beginning linking his future with the settlements . Further, Clause ofEx. MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B& C' is quite opposed to the doctrine of ' last come first go or first come last go' and therefore, the categorization in Clause I is illegal . Clause I ( a ) of Ex.MI provides an topportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of tentporary employees is not valid. Further. engaging casusts to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters, copy ofwhich is marked as Ex. W8. Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Baok on casual basis should not be given permanent appointmeat in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex.W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case. Those candidates under Ex.M10 were found suitable for appoinument as messengers and sweepers . Eveo MWI is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex M10 that it was prepared based on the settlement dated 17-11-87. 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But , when MWI has spoken about the settlements ,he deposed that settlemeal dated 27-10-188 was

not included in the Madras cinde since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Stasement with regard to this wait list . Further theHon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, in which it is stated that it is clear that the 1987 settlement was concernedwith the temporary class IV employees who werepaid scale wages as per Bipartite Settlement while the 1968 settlement dealt with daily wager in Class IV category who were paidwages daily on mutual agreement basis. In such circumstances, as rightly contended the Respondent are notjustified and combined the list of candidates covered under 1987 settlement and1988 settlement since they funned two distinct and separate classes and they cannot treal ooc class and their action undoubtedly amounts 10 violation of Article 14 of Constitution of India . Further , the avermear of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals.11 is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex.M10 commparises of both messengerial and non- messengerial candidates While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore, both belongs to twodifferentand distinct categories . But , Ex M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore, it is violative of Article 14 & 16 ofConstitution of India . Therefore , the Petitioner contended that preparation ofEx Mi namely wait list is not inconformity with the instructions of Ex M2 and non- preparation of separate panels amourus to violation of circular . Secondly, it has nor been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Futherpore, no wait list was released / published even after the Court order io WMP No. 11932/91 io W.P.No.7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88- Furthermore, wait list wider Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . Mi was nor produced ar the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been toldat 4414

THE GAZETTE OF INDIA : AUGUST 4, 2007 SRAVANA 13, 1929

[PART 11-SF .3 ( i ) ] i

Ahove all , though the Resakinlen Bank has referred to vniluntary retirement scheme. In the RespondentBank it was implemented only in the year 2001 and in constitutes pust reference period and hence evidence of Respondent' Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under section 25 and 25F of the Industrial Disputes Act , therefore, their retrenchanent from setvice is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service of the Respondent/ Bank and they are entitled to the benefits under the provisions of L. D. Act . It is further intended cm bebalf of the Petitioner that though some of the Petitioners in the connected [.Ds have not completed 240 days , since the Responden Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 2411 days in a period of 12 calendar months. He also relied on the rulings reported in 1985 TL LLJ 539 WORKMIN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION V.. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has hell that the expression 'aπαιδιν workedunder the employer cannot rocan that those days only when the workomen worked with hammer , sickle or pen brut must necessarily comprehend all those days during which they were in the employment of the employer and forwhich he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. It is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the tempotary employees who have reported lu have submitted their application for absorption as per the bank's circular and therefore , theis retrenchment is illegal . Io all these cases, the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lisis and out of thesePetitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for o faulu of theirs, they find themselves stranded in life midstream. They have also not gainfully employed. ta such circumstances , this Tribunal has to pass an award in their favour.

the time of initial appointment that their appointment was in leave vacancy. Further , evenbefore or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( 00 ) of the I.D. Ael , 1941. Thougin the Petitioner's work in the Respondent Bunk is continuous and though the Petitionet has perfumed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of SastryAward are also violated. Further, the representative of the Potitioner rellied on the tulings reported in 1985 4 SCC: 201 ILD. SINGH VE RESERVE BANK OF INDIAAND OTHERS wherein the Supreme Court has held that " to employ workmen as' badlies casuals or temporaries and la continue them as such for many years with the object of depriving them of the status and privileges of perma workmen is illegal. Learned representative further contended thatEx . M10 wait list has not been prepared in autordance with principle of seniorily in the legal sense , since the selected candidates with longest service should have prudrity over those who joined the service letter and therefore, the wais list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance will the law and the spirit of the selllement , but in utter violation and in breach of it. Though clause 2(e) of Fx. M4 slales that candidates found suitable for permanent appoinumem willbe offered appointinent against existing/ future vacancy anywhere in module or circle and in case , a candidate fails 10 accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name'shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondentultank has hot pruchaced any document show how he has arrived at the sedionty and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the avermem and also for the averment of MWl . Therefore, the termination of the Petitioner who was in regular service of the Respondent/Bank is arbitrary, mala fide and Ulegal and the Respondent/ Bank bas not acted in accordance with the terms of settlement on absorption of temporazy employees . Though the Respondent/Bank has produced Ex .M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central) . Hyderabad , it is neither a 16(3) settlement nor 12( 3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex M6 . Though the RespondentBank produced Ex. M7 and 111 interim orders passed by High Court of Madras in WMP No.11932:91 10 W.P. No.7872,91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any hearing in the case of the Petitioner . Further , though the Respondent Management has examined two witnesses , the deposition of management witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to MS .

10. Bul, as against this, the learned senior counsel for the Respondent Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Peitioners in the connected disput were not in continuous service. Hence, the question of regular appointment / absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) acid 18 (3 ) of the I.D. Act , in lieu of the 4935

भारत का ग्रनपत्र : कामस्त 4, 2007/ षण 13 ,1929

[ भाग खण्ड 3( i) )

linmited application and binds merely parties to it and settlement of the second category made with a recognised majory union has extended application as it will be binding onall workmen of the establishment. Even in case ofthe first category, if the settlement was reached with a Mepresentative union of swhich the contesting workmen WEID meanbers and if there was nothing untreasonable or unfair in the terms of the settlement, il must be binding on the contesting workrom also ." He further relied on the rulings reported inAIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is wcrived at by the free willofthe parties undis &pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in mature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even comuption and other inducements, it could be subject matter ofyet another indistrial dispute which in appropriate Govt. mayrefer for adjndication after examining the allegations as there is an underlying assumption that the settlanent reached with the help of the conciliation officer must be fair andreasonable . Relying on all these decisions, learned counsel for the Respondent contraded that though it is alleged that fisey are not parties to the acttlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further , he wgued thut no imion of the bank has questioned the settlement and in such circumstances , it cannot be wid that it is not binding on them and be is stopped from disputing the sabne.

11. Leamed counsel for the Respondent further contended that though the reference made in this caseand other comected disputes is 'whettier the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequcatial appointmeal thereupon as temporary messenger is justified?" The Petitionez contended that the rehinctent made by the RespondentBank is pot valid and he has to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt . is not valid. Further, in this case, the Court has to- see whether the restoration of wait list can be pade as contouded by the Petitioner and not reinstatement as alleged by the Petitioner in the Clarins Stantontil

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reformace is not decisive in the matter of troubility of a reference madhe relied onthe Tulings reported in 1998 LAB IC 345 SECRETARY . KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the KeralaHighCoun has held that "There wording of reference is not decisive in the matter of kemability of a reference. Even though the Tribunal camot go beyond the order of reference , if points of difference are discernible from the provisions of law and implemented by the Respondent Bank and the claim of the Petitioners are not bonafide and are madewith altcrior tmotive. Further, they have concealed the material facts that the Petitioner was walk listed as per length of his engagerunt and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger. Further, the allegation that he was sponsored by EmploypseatExchange is incorrect and the allegation that heworked as temporary messenger is also incorrect, they were engaged against leave vacancies. The settlement entered into by the Respondent/Bank and the federation were bonafide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said setticanents were not questioned by my union and the settlements were bank level settlements andoperate throughout the country . Further , be relied on the rulings reported in 1991 ] [ LJ323 ASSOCIATED GLASS INDUSTRIES LTD. VS. INDUSTRIAL TRIBUNALAP. AND OTHERS wherein under Section 12(3 ) the untion catered into a settlement with the management settling the claim of 11 workmen and the workinen zasigned from the job and received terminal benefits, but the workmen raised aples before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has beld that in the absence of plea that the seulement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the warkasen. " Learned counsel for the Respondeat further relied on the rulings reported in 1997 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherrinthe Division Bench of the Bombay High Court has beld that "Therefore a settlement arrived at in the course of the conciliation proceedings with recognised marjority union will be binding on all workmen of the establishincol , even those who belong to the minority union which had objected to the same.To thust extent, it depects from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement" It further held that " there may be exceptional cases , where there may be allegations of mala fides , frand or even corruption or other inducements. But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration." Learned counsel for the Respondent further relied on the rulings reported in 1997 LLJ 308 K.C.P. LTD. V PRESIDING OFFICER AND OTHERS wherein the Suprane Court has held that " settlements are divided into two categories narvely (1) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the ID. Act and (ii) those arrived at in the course of conciliation proccodings under Section 18 (3 ). A senlement of the first category has

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THE GAZETTE OF INDIA : AUGUST 4. 2007 /SRAVANA 13, 1929

PART -SR ( 1 ) material before it, it has only on duty and that is to decide thepoints on merits and not to find out some technical defects in the wording of reference, subjecting the poor wortoman to hardship involved in moving the machinery again ." Itfurther held that "the Tribunal should look into the pleading and find out the exact nature of pleading of thePetitioner to find out the exact mature of dispute instead of refusing to answer the reference on merits. " Further, he argued that the Tribunal has got power to go into the questionwhether the Petitioner is to be reinstated in service or not for which he relied on the rulinga reported in 1998 LABIC 164 VANSAGNATHAN ORIENTPAPER MILLS V. INDUSTRIAL, TRIBUNAL & ORS, wherein the Madhya PradeshHighCourt has held that "the Tribunal cannot go behind the terms of reference , but thu does not mean that it cannot look into the pleadings of parties ."He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS, wherein it has been held that " it has been repeatedly held that the labour Court should not attempt to consider the orderunder reference in a technical mimmer or pedantic manner, but should consider the order ofrekreace in a fair and reasonable mumer ." He also angued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC509 the Supreme Court has held that "The Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the munner which would prolong the industrial adjudication TheLabour Court is expected to decide the real nature of disputes between the patties and with that objecttinin view, it should consider the order of reference in a fuir and reasonable manper, though the order of reference is not happily fradned norwas it framed to the high expectation of the Labour Court " Relying on all these decisions , the representative for the Petitioner argued that though in the reference, it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners burve been retrenched from the Respondent Bank and therefore , this Tribunad can look into the pleadings of the Petitioners and can decide whether the Petitioner entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13. find some force in the contention of the representative for the Petitioner . Therefore , 1 find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to hith or not? But, I find that the settlement was validly entered into berween the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement

should be reinstated in service and he relied on the rulings . reported in 1996 3 SCC 139 LINTON OF INDIA AND OTHERS VS. K.V.VDEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name aрреагь in the select list on the basis of competitive examination acquires a right of appointment in Govt service in an existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made in view of the impewling absorption of steam surplus staft and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that "in such circumstances , denial of appointanent to the persons removed from the select list is not arbitrary und discriminatory." He further relied on the rulings reported in 19976SCC584 SYNDICATE BANK & ORS VS.SHANKAR PALI . AND OTHERS wherein the Supreme Court has held that' by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year voly and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that theRespondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bunk. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as containerd in the W.P. Was thus, misconceived and therefore, the learned Single Judge and theDivision Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the mlings reponed in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIAwherein the Supreme Court has held that "candidates included in merit list has no indefcasible right to appointment even if a vacancy exists " and rellying on all thesedecisions, learned counsel for the Respondent contended that since the Petitioner has no nghi 10 question the wait list and since there is no malo fide on the part of the Respondent Bank in preparing the wait list, it cannol be said that prepuration of wait list was made with mala tide motive . Under such circumstances, after the expiry of the date namely 31-3-1997 . the Petitioner cannot plead for restoration of the wait list and he cannot pray for rcinstaremery as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS .Vs. PIARA SINTH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad-hor temporary employees who have continued for more than a year shouldbe regularised , we find it difficult to sustain it. The direction bas been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year shouldbe regularised even though ( a) no vacancy is 4937

भारत का राजपत्र अगस्त 4 2007 / আব ण 13 , 1929

[भाग- खण्फ 3( ii) ]

circumstances, their disengagerent from service cannot be construed to be a retrenchment under the L.D. Act. The concept ofretrenchment therefore, cannot be stretchedto mach an extent ar to cover these employees. Since they are only daily wage employees and have no right to the posts, their disengagement is not arbitrary." He further relied on therulings reported in 19943 LLJ (Supp) 754 wherein the RajasthanHigh Courtibus held that "Under Section 25G of the 1.0 . Act retrenciument procedure following principle of "last come- first go ' is not mandatory but only directory.on sufficient grounds shown, the employer is permitted to depan from the said principle retrenching seniors πας retaining juniors . Though in this case, the Petitioner bus alleged that his jumiors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank. Any how, if the Petitioner has shown anything, the Respondent/Bmak is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances, the prayer for reinstatement in the services ofRespondent/Bank cannot be given to the Petitioner and, therefore, the claim is to be dismissedwith couls .

available forhim which means creation ofa vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door, (c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders. None of the decisions relied uper by the High Court justify such wholesale. unconditional orders . Moreover , from the mere continuation of an ad- hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years. Further , there can be no role of humab ist such matters . Conditions and creamstimees of one uthit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations .The relief mast be moulded in cach case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious ouc. From this , the impugned directions most be held to be totally untenable and unsustainable. Thus, the Supreme Court set aside the ardes ofLower Courts . He further relied on the decision reported in 1997 ISCC ASHWANI KUMAR AND OTHERSVs. STATH OF BIHAR AND OTHERS wherein the Full Ben टो of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void in concemed , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidak would arise, ifthe candidate concerned is appointed in an irregular manner or on, ad-hoc basis against an avalable vacancy which is already sanctioned. But, if the initial catry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for considerarion and even if such purported regularisation σε confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise thean or to give cherm valid confirmation .The so called exercise of confirming these employees, therefore , remained a mullity." "Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against anyregular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent /Bank . Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMARVIDYARTHI & ORS VS STATE OF BIHAR AND ORS. wherein the Supreme Court was held that "they are temporary croployees working on daily wages . Under these

15. Leamed Senior Advocate further argued that even inrecent decision reported in 20064 SCC | Secretary. State of Karnataka Vs. Uma Devi , the Supreme Court has held thut meurly becauие в вітровагу employee or a causal wage worker is continued for a tiane beyond the buran of bis appointment, he would not be entitled to be absorted in regular service or made persoanent merely on the strength of soch contianince, if the original appointment was not madeby following a due process of selection as envisaged by relevant rules. It is not open to the Court to prevcut regular recruitment at the instance of temporary employees whone period of employment las come to in cad or of ad- hoc employeeswho by the very nature of their appointmeat, do tot acquire any right. " Further , it has also held that it is not as if, the person who accept in gagement wither temporary or casual in osture is not aware of his employmest. He accepts the employment with open суть. It may be true that he is not in a position voi berguit not t arms length since he might barve been searching for some employment so as to cực ort his livelihood and accepts whatever he gets .But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuste illegalities and to take the view that a person who has temporarily or casually gotcumployed should be directed tobe contimsed pernsänendy. By doing so, itwill be creating another mode of public appointmen which is not permissible." Further , the Supreme Courtwhile Isying down the law, has clearly held that " upless the appointment is in terms ofthe relevant rules and at propez competition among qualified persons, the summe would not confer any right on the appointee...... ماعمدتا be clarified that merely because a temporary employbe or a casual wage worker is continued for a time beyond the term ofhis appointment, he would not be catitled to he absorbed in regular service or made permanent merely on 49.38

THE GAZETTE OF INDIA: AUGUST 4 , 2007 /SRAVANA 13, 1929

the strength of such continuance, ifthe original appointment was not made by following a dne process of selection as cavisaged by releventrales. Further , in CDJ 2006 SC443 National FertiRners Lad, and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore, is not mode of appointment and if appointment is made without following the rules, the same being a wallity, the question of confirmation of an employee sapom the expiry of parported period of probation would notarise." Pardar, in Cil 2006 SC 395 Municipal Council, SojampurVs Surinder Kamar, the SupremeCourthasheld st it is not disputed that the appointment of the Rapondent was not in sanctioned port. Being a ' State" within the caning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its ccmployees abound to follow the recruitment rules.Any recruitment made in violation of sach rules as also in violation of contintinnad schone calmined adaArticle 14 wad 16 of the Constitution of India would be void in low." Further. in 2006 2 ILLN 89 Madikya Pradesh State Agro ladostijesDevelopment CorporationVs. S.C.Pandey wherein the Supreme Crust as held that "only because an employeebad worked for anore than 240 days of serviceby thet itself would not comfer my legal right upor him tobe regalarised in service." The Supreme Court also beld that "the changes brought about by the subucquant decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globaliation, privatisation and outsourcingis evident, in view of the settled legal position, asnoticed hereinbefore."

[PART Ser.3 ( ) ] and they have not alleged that settlement was not a bona fide in osture or it has been arrived at on account of mala Fide, raisrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners canol now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners camut claim for reinstatement or regularisation in services of the Respondent/Bank.

18. Further, the representative for the Petitioner contended that in a similar cases, this Tribunal bad ordered for reinstatement with back wages and these disputes are also similar in sabove and beace, the Petitioners are cotidied for the same relief.

19.But, I find since the Supreme Court has held that semporary employees are not intitled to claims any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its owe merit and the changes brought aboutby the subsequent decisions of the Supreme Court probablyhaving regard to the changes in the policy decisions of the Government in the wake of prevailing markel economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him. Therefore , I find this point against the Petitioner.

Point No. 2:

The next point to be decided in this case is to what relief the Petitioner is catitled?

20. In view of my foregoing findings that the Petitioner is a temporary comployee and he is not entitled to be absorbed in regular service or made решитель интely on the strength of such continuance of work. I find the Petitioner is not entitled to any relief as claimed by him . No Совыв

21.Thus, the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected sad pronounced by me in the open court on this day the 31st Jintury.2007)

K. JAYARAMAN , Presiding Officer For the Petitioner

16. Relying on all these decisions , kamed counsel for the Respondent contended that since the Petitioner has not been appoimed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to clades regularitation of his service. Partiser, when they have not been questioned the five settlementsjentered into between the Respondent/Bank nd Federation and since they low not questioned the wait list prepared by the Respondent Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour sothorities wasonly to restore the wait list and also for appointmeal thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlemeas which were subsequendy amended by settlements, the Petitioners cannot now question either the preparation ofwait list or nuniber allotted to them . Under such circumstances , it cannotbe questioned by the Petitioner.

WW1 Sri J. L. Alexander WW2Sri V.S. Ekambaram For theRespondent MWI Sri C. Mariappan MW2 Sri C. Ramalingam Documents Marked :

Ex. No.Date

17. I find much force in the cuicution of the learned counsel the Respondeat. Though in the Chain Statement, thePetitioners have made no may allegations with regard to preparation of wait list and smo settlements cutered into between the Respondent/Baikwad Federation , at the time ofreference,they have not questioned the settlement nor the number allotted to each individual in the wait list . Forther, the Petitioners have not questioned the settlemeni

Description

1-8-88 Xerox copy of the paper publication in daily Thanthi based on Ex .M1 .

[ भाग II-क्षण 3(ⅱ) ]

भारत का रानपत्र अगस्त 4, 2007/ 暢하여 13 , 1929

4939 W2 20-4-88

W19 26-3-97 Xerox copy of the letter advising selection of part time Menial G. Pandi Хегоx copy of the administrative guidelines Issuedby Respondent/Bank for implemention ofEx. M1 .

W20 31-3-97

W3 24-4-91

Xerox copy of the appointment order to SriG.Pandi

W21 Feb. 2006

Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of dally wagers in Messenger vacancies .

Xerox copy of the pay slip of T. Sekar for the mouth of February, 2005 wait list No.395 ofMadurai Circle W4 1-5-91

22 13-02-95

Xerox copy of the advertisement in the Hindn on daily wages based on Ex, W4,

WS 20-08-91

Xerox cupy of the Maduria Module Circular etter about Engaging teamporary cmployees from the panel of wait list Хегоx copy of lise advertisement in The Hindu extending Period of qualifying service to daily wagers .

W23 09-11-92

15-3-97

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger stall.

Хаток.copy of the circalar letter ofZonal Office, Chennai About filling up of vacancies ofmessenger posts.

W24 09-07-92

W7 25-3-97

Xerox copy of the minutes of the Biparite meeting

W25 09-07-92

Хегоox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97 ,

Xerox copy of the settlementbetween Responden /Bank and All India Staff Bank of Indin Staff Federation for implementation of norms-creation ofpert time general attendants.

₩26 07-02-06

Xerox copy of the instruction in Reference book on daff about casuls not to be cagaged at office/tranches to domessengerial work.

10-12-84 Хетох copy of the service certificate issued by Mannedi Branch .

Xerux copy of the local Head Office circular about Conversion of part dime employees and redesignate them as general attendamis.

W10 5-8-88

W27 31-12-85

Xerox copy of the service certificate issnedby Mamadi branch .

WII 8-8-88 Xerox copy of the service certificate issued by Perambur branch.

Xerox copy of the local Head Office circular about Appointment oftemporaагу employees in subordinate cadre For the Respondent /Management: -- W12 NE

Ex . No.Date

Description

Xerox copy of the statement showing number of Days the Petitioner worked

MI 17-11-87 Хетох сopy of the seulement W13 N

M2 16-07-88 Хегох copy of the settlement.

M3 27-10-88 Xerox copy of the settlement

M4 09-01-91 Хегох copy of the settlemen Xerox copy of the administrative goldelines in reference boot on staff matters issued by Respondent/Bank regarding appointment of temporary employees.

MS 30407-96 Хегох copy of the settlement.

W14 NE

MS 09-06-95

Xerox copy of the Reference book on Staffmatters Vol . III consolidated upto 31-12-95

Ханоx copy ofthe minutes of conciliation proceedings.

W15 6-3-97

M7 28-05-91 Хегох copy of the order in W.P. No.7872/91.

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikaman

15-05-98 Хегоx copy of the order in O. P. No. 2787/97 of High Court ofOrissa.

W16 06-03-97

10-07-99 Хетох copy of the order of SupremeCourt in SLP No. 3082/99,

Xerox copy of the call letter from Madurai zonal office For interview of thessenger post- K . Subburaj

M10 N

W17 06-03-97-

Xerox copy ofthe wait list of Chennai Module.

Xemx copy ofthe call letter from Madurai zonal office For inkrview of messenger post-J. Velmarugan

M11 25-10-99

W18 17-3-97

Xerox copy of the under passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99,

Xerox copy ofthe Service particulars- J.Velmurugan 4940

THE GAZETTE OF INDIA : AUGUST4 , 2007 /SRAVANA 13, 1920

नई दिल्ली , 19 जुलाई , 2007

का,आ, 2178,-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधितंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औरोंगिक निवाद में केन्द्रीय सरकार औद्योगिक अधिकरण, चेत्राई के पंचाट ( संदर्भ संख्या 248/2004 ) को प्रकाशित करती है , जो ओमेन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था । [सं. एस-12012/447/98 माईआर( बी ] } |

Ракт П--ЅH.3 ( ii ) ] referred this dispute earlier to the Tamil Nadu Principal Labour Court . Chennai and the sad Labour Court has takeri thedispute on its file as CGID No. 187/99 and issued notices to both parties . Both sides entered appearance and filed cheir claim statement and Counter Statement respectively. After the constitution of this CGIT cum labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunat has numbered it as I.D.No. 248/2004.

2. The Schedule meminned in that order is as fullows:

अजय कुमार, डेस्क अधिकारी

NewDelhi , the 19th July,2007

S.O. 2178.- In pursuance of Section 17 of the Industrial Dispщев Асі, 1947 ( 14 of 1947), the Central Govemment bereby publishes the award (Ref . No. 218/ 2004) of the Central Government Industrial Tribunal-cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen, received by the Cennal Clovemment dτη 19-7-2007.

[No. 1.. 120012/447/98-11 ( R- 1 ) ) AJAY KUMAR . Desk Officer

ANNEXLURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM -LABOUR COURT, CHENNAL

Wednesday, the31stJumary , 2007

PRESENT:

ShriK JAYARAMAN , FresidingOfficer Inchustrial Dispute No. 248/2004 (Principal labour Court CGID No. 187/99 ) ( In the matter of the dispute for adjudiation under clauseldi of sub - section ( 1 ) and sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 uf 1947 ) , between the Managementof State Bank of India and their workmen

BETWEEN

Sr. M. Dhanusuraj

"Whether the demand of the workman Shri M. Dhanusuraj , wast list No. 461 for restoring the wait list of temporary messengers in the establishment of State Bank of India and conse- quential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is curinled ?"

3. The allegations of the Petitioner in the lam Statement are briefly as followর.

: Party/Peritioner

AND

The Assistant General Manager. II Party /Managementі StateBank of India , 2.0. Chennai .

APPEARANCE:

For the Peritinner

: Sri V. S. Ekambaram , Aurhorised Representative .

For the Management : M/ s . K. S. Sunder . Advocates .

AWARD

1. TheCentral Government Ministry of labour .vide Order No. 1. - 130 : 2/447/98 ( R ( B - 1 ) dated 12-3-1999 bas The Petitioner was sponsored by Employment Fxchange for the post of sub stall in Class IV cadre m State Bank of India und he was given appointment as messenger after an jorerview and medical examination . He was appointed on temporary basis ar Tanıharam hranch from 9-6-1964.The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petirion filed by State Bank Employees' Union in Writ Petition No. 542/8? which was taken up hy the Supreme Court . The Respondent Bank,in addation to its counter, filed a cupy ul settlement under section 1811 ) reached between management of StateBank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class [V temporary workmen who were denied employment after 1985-86 wеге classified in the selliement was under considerarion once again and they classified the workmen under three categories namely A , B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview 10 be held through advertisements. The Peritioner also submitted his application in the proscribed format through Отожch Manager of the Tamburam branch. He was called for an interviewby a Committee appointed by Respondent/ Hunk in this regard . But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed urally to join at the branch where he initially worked as a class TV employee . From 96-84 , the Petitioner hasbeen working as a temporary messenger and some times performing work in other branches also. While working on temporary basis in Tambaram branch, another advertisement by the Respondear /Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petirioner nrally no 313 1997 that his services are not required any more and he need not attend the office from [ भाग- खण्ड ( ii) ]

4941

भारत का राजपत्र अगस्त 4, 2007/ श्रषण 13, 1929

1-4 1997 Hence, the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure , the matter was referred in this Tribunal for adjudication. Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , be has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Responden/Bank to continue to engage him in service as obtained prior to 31-3-1997 and to regularise him in service in due course . The Respondent/Bank look up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was out aware of settlement by which his services and number of days worked by bim after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Section 250 & 25H of the I.D. Aut. The termination of the Petitioner is against the provisions of Para 522(4 ) of SastryAward. Even though the settlement speaks about three categories only a single wait list bas been prepared and the Respondent/Bank has been regularising according to their whitus and fancies. The Respondent/Bank bas also not observed the instructions regarding grant of increments , leave, medical benefits exc. to the temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner and extracted the sarve work cither by payment of petty cash or by directing him to wark ander asajprmed name or by bath which amounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any ratioak . Hence, for all these reasons the Petitioner prays to grani relief of regular employment in Respondent/Black with الد attendant benefits.

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt for adjudication by this Tributal itself is not maintainable. The Petitioner was not in continuous service. Hence , the question of regular appointment /absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18(1 ) and 18(3) ofT.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank The claim of the Petitioner is not bona fide and madewith ulterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in senjority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their casewas espoused by State Bank of India Staff

Federation which resulted in five settlements dated 17-11-1987,16-407-1988,7-10-1988, 9-1-1991 and 30-7-1996. The said setticrments becarne subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) of ID. Act . In teams thereof, the Petitioner was considered for petromanent appointment as per bis eligibility along with similarly placed other temporary employees, and the Petitioner was wait listed as candidate No. 461 in wait list ofZonal Office, Chennai. So far 357 wait listed temporaку candidates, out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank .It is false 10 allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it rose. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment. Such of those temporary compkyees who were appointed were engaged for more number of days and bence , they were appointed. Under the settlement , employees were categorised as A, B andC. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporaгу employees who were engaged for 240 days were to be coosidered and under category (B) the tempoгагу employees who have completed 270 days aggregate temporary service in any continuous block of36 calendar months and poder category (C) the semporary employees who have completed 30 days aggregate temporary service in way calendar year after 1-7-75 or minimum 70 days aggregate lemporary service in any continuous block of36 calendar mouths were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were in arise upto 31-12-1994, The Petitioner has no valid and enforceable right for appointmed . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problero was due to the facts that all the aforesaid temponty employees were working in kave vacancies and not in regular permanent vacancies , in terms of aforesaid settlements , out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 461 he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and bis claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements . and operated throughout the country. The Tamil Nadu Industrial Establishment ( Conferansent of Permanent Status to Workmen) Act, 1981 does not apply to Responden Bank and this Tribunal bus no jurisdiction to cztertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was PAK Sec. 3 ( i ) ) 4942

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13 , 1929

Palat No. 1 :

discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up agairtst thewaited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointinet of daily wages/casual labour . Further , for circle ofChennai wait list of daily wagers was not finalizei and hence hot published and there is only one wait list for theappointment of temporary employees .After the expiry of wait list. the Petitioner has no claim for permanent absorption, Hence, for all these reasons, the Respondent prays to dismiss the claim with costs.

B In this case , un behalf of the Petitioner it is cuntended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms of the relevant guidelines / circulars of the Respondent/Bank io permanent vacancies in subordinate cadre on temporary basis.After engaging them intermiquenchy for some years, the Petitioner in this case and other Petitioners in the connected disputes were terminared without any notice. Since theRespondent /Bank terminated several tempoгагу employees in the year 1985, the State Bank Eruployees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutimal rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) 1987, the Respondent/Bank hurriedly entered into a seulement on the issue of absorption of temporary employees and filed it before the Supreme Cou at the time of froal hearing of the Writ Petition . This settlement has become an exbibit of the Respondent/Bank and has been marked as Ex . MI . The Petitioner in this case and the Petitioners in the connected cases attacked this seulement as it is not binding on them the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank afuer 31-3-1997 and therefore , they have ruised the dispute in the year 1997 before the labour authorities and they questioned the retrenchosent as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondeau/Bank for selection of candidate for appointinent in the post of messenger and other class TV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore, the Respondept/Bank is dury bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998,the Respondept/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petizioneribe engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future craployrant . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedwurkmen with ulterior motive. The RespondenuBank bas been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence, the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlernents made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18( 3 ) of the Act. As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is falseto allege that the settlements are contrary to the rights of the Peftioner. Hence, the Petitioner prays that an award may be passed in bis favour .

7. In these circumstances, the points for my consideracion are:

"Whether the demand of the Petitioner in Wait List No. 461 for restoring the wait list of temporary messengers in the Respondeo Bank and consequential appointmen thereupon as temporary messenger is justified?"

9. On behalf of the Petitioner , it is contended tha these Petitioners were recruited as temporary employees in theRespondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and im anу сазе. the Petitioner is not bound by settlement under Section 18( 1 ) entered into berween the alleged Federation and the Respondent/ Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of suict instructions and circulars /guidelines issued by the Respondent/Bank in the effect that temporary employees at branches /offices are not allowed tobe in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right fur appointment as Section 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Iearned representative for "To what relief the Petitioner is entitled ? " 4943

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[ भाग - खण्ड 3( 日) 】

MWI wait list under Ex .M10 was prepared on 2-5-92but there is no pleading in the Counter Statement with regard to thiswait list. Further the Hon'ble High Court has held in its ander dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement wind concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paki wagts daily on mutual agreement basis . In unch circumstances, as rightly contended the Respondra are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14ofConstitution of India. Further, the куествені of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperie attempt towriggle out the illegality committed or perpcicated by the Respondent/Bank by combing.cquals with anoqui It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex M10 comprises of both messengerial and non-messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case ofcasuals. Therefore, both belongs to two different and distinct categories . But,Ex M3 provides for the same norms to the casuals as in the case of temporary employees in the rain ofabsorption. Therefore, it is violative ofArticle 14 &150€ Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M 10 namely wait list is not inconformity with the instructions of Ex M2 and non- preperation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released published even after the Court order in WMP No.11932/91 in WP.No.7872/91 directing the Respondent/Bank to release the list of successful candidates puruund to the first advratisement published in The Hindo dated 1-8-88. Fortiscrmore, wait list under Ex.M10 does not carry potticulars about the candidues dateof initial appointment and the number of days pat in by them to scrive at their respective seniority. Prom الد these things, it is clear that Ex. M 10 has been prepared in violation of instructions and ceased to lave the credibility sttachedto the wait list. Above all, Ex. I was not produced at the time ofconciliation proceeding held during the year 1997-98 held at Chennai and Madurai and only during the year2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as confidential document.It is further contended on behalf of the Petitioner thu though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement en absorption oftemporary employees , the expression that they were engaged in leave vacancy the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-Aof the I.D. Act providing for retrenchment is not enacted only for the benefit ofthe workmea to whom Section 25F applies but for all cases of retrenchiment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointmeal is untronable. It is further contended that on behalf of the Petitioner that Ex .W2, W3 and WB as well as Ex . M8 which constitute/relate to the circular /mstructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex.Ml and the vermems ofMWI and MW2 and their testimonies during the cross-cxamination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking bis fumre with the settlements. Forther, Cloose 1 ofELMI deals with categorization of retrenched temporary employees imo'A, B and C" , but this categorization of 'A, B&C' is quite opposed to the doctrine of " last come first go' or first come- last go and therefore, the categorization in Clause 1 is illegal . Clause I ( a ) of ExMI provides an opportunity to persons who were engaged on cusual basis and allowed to work in leave/ casual vacancies of messengers, facushes , cash coolies , water boy's , sweepers ete "for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff routiers, Copy of which is marked as Ex.W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the cligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should notbe given perthanent appointment in the bank service. Those casuals were givenunare beneficial treatment in the matter ofarriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendmentwhich includes casuals affecting their interest and chance. Further , as per instructions in Ex. W2 four types ofwaiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for cach module as per ExM 10 in this case . Those candidates under Ex, M10 were found suitable for appointment as messengers and streepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 mmd 9-1-91 which are marked asEx.MI , M3 and 44 respectively. But, when MW1 has spoken about the settlements , be deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except bis bald statement. Purther, according to

3218 G/37-17 4944

THE GAZETTE OF INDIA: AUGUST 4. 2007/ SRAVANA 13. 1929

PART I -SEC...( IL ) 1

uf Respondem/Bank has an application to the T'eticabner's case. The Petitjuners lave cornpleted the service of 240 days and more in a continuous period of 12 calendar months as enshrined undei sectina 25B and 25F of the Industrial Disputes Act therefore, their setreik tumcor from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service of the Respondent Bank snel they are entitlod is the benetes under the provisions of ) 1 Aer . It is further conteniled on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days. since the Respmodenr/Bank has not taken into considerarior: and not included the Sundays and paid holidays as days on which the Petitioners have actuaily worked and hence, they have also completed 240 days in a perind of 12 calendar months. He also relied on the rulings reported in 1985 1 LLJ 539 WORKMEN OF AMERICAN EXPRUSS INTERNATIOΝΑΙ . ΒΑΝΚΙNG CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATIOINwherein the Supreme Court has held that the expression actually worked under the amployer cannot mean that liose day only when the workmen worked wh hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and fur which he had been pail wages either under exprewor implied contist of service of ty compulsion of statute. standing orders enc . It is further , argued that call letters produced by the Petitioner will clearly prove that the RespondentBank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorprion as per the bank's circular and dierefore , their retrenchmen is illegal. To all these cases , the Petitioners were int employment as sub stall in carty 1980s but were denied fun her engagement on account of settlernents /lapsing of wait lists and ถ ยา of these Petitioners some of them have completed 240 days and more in a continuous pend of 12 calendar months and they are in age group of 411 50 50 years and fur no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed In such circumstances , this Tribunal has to pass an award in their favour.

was used as a device au take them out of the principal clause ( nn ) of the 1.D. Act , 1947, Though the Petitioner's work in the Respondent/Bank is continuous and though thePetitioner has performed the duties continuouslywhich is still in existence. the categorisation as such is not valid and the provisions of Sastry Award are also violated urther, the representative of the Petitioner relied on the rulings reported in 19854 SCC 201 HD. SINGHVS. RESERVE BANK OF INDIA ANT OTHERS wherein the Supreme Court Has held that " to employ workmen as 'badlies casualsfor temporaries and to continue them as such for many years with the object ofdepriving them of the status and privileges of permanent workmen is illegal . Leame! representative further contended that Ex. M10 wait list hus not been prepared in accordance with principle of seniority In the legal sense, since the selected candidates with Bongest service should have priority over those who joinerl the service letter and therefore, the wait list under Ex .M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent Bank has not acted in accordance with the law and the spirit of the settlement . bur in unter violation and in breach, of it. Though clause 2(e) of Ex. M4 states that candidates found suitable for permanchi appointment willbe offered appointment against existing future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment of posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from therespective panel and he shall have no further claim for being considered for permanent appointment in the bank The Respondent/Bank has not 'produced any document showhow he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the avermem ofMW ) . Therefore, the termination ofche Petitioned who was in regular service of the Respondent Bank is arbitrary, mala fide and illegal and the Respookkent Bank has not acted in accordance with the terms of settlemen omabsorption of temporary employees. Though theRespondentBank has produced Ex. Mó which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central). 1Hyderabud. ir is neither a 18 (3 ) settlement no 12 (3 ) setelementas claimed by the Respondent Bank which says onty with regard to modification of Ex. MI to M4 made in terms of Ex. M6 . Though the Respondent/Bank produced Ex. M7 and M1 | interim orders passed by High Court of Mudras in WMP No. 11932/9 in W.P.No. 7872/91 ceased inhuve any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have aty bearing in the case of the Petirioner. Further, though he Respondent/Management has examined two witnesses , the deposition of management witnesses during the cruss examination had become apparent that they have nu personal knowledge about the sendearments which are marked as Ex. Ml inM5 . Above all, though the Responden/Bank has referred to voluntary retirement scheme. In the Responden /Bank it was implemented only in the year 2000 and it constitutes post reference period and hence evidence

10. But. as against this , the learned senior counsel for the RespondentBank contended that the reference madeby the Government itself is not maintainable in view of the facts and circumstances of the case. The Petitioner in this case and the Positioners iss the connected disputes were not in continuous service. Hence, the question of regular appointment'ahsorption does nor arise at all and their engagement was not authorised. Further , the Petitioners are estepped from. making claim as they had accepted the settlements drawn ander the provisinas uf Section 18 ( 1 ) and 18121 of the ID Act . in heu of the provisions of law and implemented by the Respondea Bank and the clam: titioners are no hunafide al are made with ulterior motive . Further , they have concealed the material facts that the Petit inter was want listed as per length of his creagement and could not be absorbed as he 4945

भारत का राजपत्र : अगस्त 4. 2007 / श्रवण 13 , 1929

[ भाग -खण्ड 3 (ii )

representative union ofwhich the contesting workmenwere members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in ATR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court bas held that "settement is arrived at by the free will of the parties and is a pointer to there being good will between thean . When there is a dispute that the settlement is not bonafide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter ofyet another industrial dispute which an appropriateGovt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlemeni reached with the help of the conciliation officer must be fair and reasonable ." Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlemeal , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is bincling on the Petitioner . Further , he argued that to union of the bank bas questioned the settlement and in such circumstances, it cannot he said that it is not binding on them and he is estopped from dispoting the

11. Learned counsel for the Respondent further comended that though the reference made in this case and other connected disputes is 'whether the demand of the workman with wait list No. given for rong the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified? The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he bas to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Governmen is not valid. Further, in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

was positioned down in the seniority. The Respondent/ Rank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he wirked as temporary messenger is also incorrect , they were engaged against leave vacancies . The sealement entered ito try the RespondentRank, and the federation were honatide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the seulement und accordingly he was wait listed and Eberefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questionedby any and the settlements were bank level settlements and operate throughout the country. Further , he relied on the rulings reported in 199111323 ASSOCIATIDGLASS INDUSTRIES 1.TD. VS. INDUSTRIAL TRIBUNALA.P. AND OTHERS wherein under section 12 (3 ) the union entered in a settlement with the management settling the claim ol ] workmen and the workmen resigned from the jub and received terminal benefits, but the workmen raised a plea be ore the Tribunal that they did not resigo voluntarily . But the Andhra Pradesh High Court has held that " in die alusence of plea that the settlement reached in the course of conciliation is viriated by fraud , mis representation or coercion , the settlement is binding on the workman." I earned counsel for the Respondent further relied on the rulings reported in 1997 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held thal Therefore a settlement arrived at in the course of the conciliation proceedings ,with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law of contacts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scurtling the settlement." It further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements. But, in the absence of such aliegations , a settlement in the course of collective bargaining is entitled 10 due weight and consideration." Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.CP. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i ) those arrived at outside the conciliation pmcccdings under section 18 ( 1 ) of the LD . Act and( ii) those arrived at in the course of conciliation proceedings under section 18 (3 ). A settlement of the first category has bronted application and binds merely parties to it and senleniveau of the second category made with a recognised majurity union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category , if the settlement was reached with a

12.But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter ofhenability ofa reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY. KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court hasheld that "mere warding of referezice is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide thepoirus on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal sbould look into the pleading and find out the exact nature of pleading of 4946

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13. 1929

[PART I-SFr . 3uij thePetitioner to find out the exact riature ofdispute instead of refusing to answer the reference on rocrits ." Further, he argued that the Tribunal has got power to go ima the question whether the Petitioner is to be reinstated in service ex stot for which be relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VANDUSTRIAL TRIBUNAL & ORS. wherein the MadhyaPradesh High Court has held that "the Tribunal clabiot go beaind the terms of reference, but that does not mean that it cannot look into the pleadings of parties . " He also nelied on the rullags reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has bean repeatedly held that the Labour Court should not anetaptto consider the order under reference in a technical wanz or a pedantic manner, but should consider the order of reference in a fair and reasonable manner ." He also argwedthat inExpress Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribemat has jurtadiction to consider all incidental matters also and bejorder of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real narere of disputes between the parties and with that object in vide, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchimeat is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the RespondentBank and therefore , this Tribunal can look into tise pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or Dot ? But , 1 find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent Bank, 1 find the Petitioner is not entitled to question the seatlement .

an existing or a future vacancy. " In thar case, pruning of select list on reduction in member of vacancies was inade in view of the impending absorption of steam surplus stafi and a policy decision has been taken to reduce the number of vacancies and consequearly , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointinentis according to thei comparative ments . In which . the Supreme Court has beld that "m such circumstances , denial of appointment to the persons removed from the select list 15 Trot arbitrary and discriminatory." He funther relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs SHANKAR PAUL AND OTHERS wherein the Supreme Court has held thar "by its lener dared 7.2.87 the hank informed the Respondents that the panel was valid for one year nolly and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointmem in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panet expiring on fi - 2-98 , we are of the opinion that the Respondents did not get any right because of inklusion of their names in the said panel for permanent abenmpion in the services of the bank . Whatever conditional right they bad come to an end with the expiry of the panel. The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore, the learned Single Judge and the Division Bench, when it first decided the appeal were right in listassing the Wrat Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDLA wherein the Supreme Court has held thas" candidates included in merit list has indefeasible נד ght to appointment even il' a vacancy exists and relying on all these decisions , learned counsel for theRespondent contended that since the Peritioner has right to question the wait list and since there is no mala fide on the part of the Respondent Bank in preparing the wait list , it cann be said that preparation of wais list was made with mala- fide motive. Under such circumstances , after the expity of the date namely31-3-1997. The Petitioner carmot plead for restoration of the wait list and he cannot pray for reinstatemeru as alleged by him Jurther , be relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS. Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now comingto the directiuct that all those ad- hoc temporary employeeswho have controued for more than a year should be regularised . we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy.The direction in effect means that every ad-hoc / temporary employer who has been continued for one year should be regularised even though ( a ) no vacancy is available for him which means creation of a vacалсу ; (b) be was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for zpplications which means he had entered by a back door (c) he was not eligible and qualified for the post at the time of bis appointment; (d) his record of service since his appointment is not satisfactory . These are the addicional 14. Then the Icarood counsel for the Respondent contended that since the Petitiuter mentioned that he bas been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannon question that he shouldbe reinstated in service and he relied on the rulings . reponed in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VI K.V.VIBESH wherein the Supreme Court has beld that " the only question which falls for determination in this appeall is whether cundidue whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Doveriment service in 4947

भारत का राजपत्र अगस्त 4 , 2007/ ऋषण [ 3 , 1929

[ भाग -खण्या 3 ) ]

problems indicated by us in para 12 which would arise from RajasthanHigh Court hus held that "Under Section 25G of the 1.D.Act retrenchment procedure following principle of "last come- first go " is not mandatory but only directory, on sufficient grounds shown, the employer is permittedto depart from the said principle retrenching seniors and retaining juniors " . Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that hisjuniors were made permanent by the Respondent/ Bank.Any how, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked move days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Peritinner and, therefore , the claim is to be dismissed with costs .

15.Learned Senior Advocate further argued that even in recent decision reported in 2006 4SCCI SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Courthas beld that " merely because a temporary employce or a casunt wage worker is continued for a time beyond the vern of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant roles . It is not open to theCourt in prevent regular recruitment at the instance of Lemporary employees whose period of employment has come to an end or of ad-hoc employees who by the very nature of their appointment , do not acquire any right" Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes. It may be true that he is not in aposition to bargain not at arms length since he might have been searching for some employment so as to ekeout his livelihood and accepts whatever be gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casuallygot employed should be directed to be continued permanently.By doing so, it willbe creating another mode ofpublic appointment which is not permissible. " Further, TheSupreme Court while laying down the law , bas clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee......It has to be clarified that merely because a temporary employee or a casual wage worker is continued for atime beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if. theoriginal appointment was not minde by following a dne process of selection as envisaged by relevant rubes." Further, in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD AND OTHERS VS. SOMVIR SINGH, wherein the SupremeCourt has held that "regularisation. furthermore , is not a roode of appointment and if appointment is made without following the rules, the same being a nullity, the giving of such blanket ordas . None of the decisions relied upen by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad -hoc employee for one year , it camnol be presumed that there is need for regular post. Such a presumption may bejustified only when such continuance extends to several years. Further , there can be no rule of thumb in sach matters . Conditions and circumstances of one unit may not be the same as ofthe other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be beld that in each and every case, such a direction must follow irrespective of and without taking into secount the other relevant circumstances and considerations .The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. From this, the impugned directions must be held to be totally untenable and unsustainable .Tirus , the Supreme Court ser aside the orders of lower Courts. He further relied on the decision reported in 1997 SEC 1 ASHWANI KUMAR AND OTHERS VS. STATEOFBIHAR AND OTHERS wherein the Full Bendi of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far #s the question of confirmation of these employees whose entry itself was illegal and void is cancemed, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , ifthe candidate concerned is appointed inan irregular manner or on ad- hoc basis against an available vacancy which is already sunctioned. But, if the initial entry itself is unauthorised and is not against ady sanctioned vacancy , question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exerise of confuming these employees, therefore , remained a nullity." " Therefore, learned counsel for the Respondent contended that these teroporary employees were appointed onlydue to exigencies and they have not appointed against any regular Vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the nilings reported in AIR 1997 SC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OFBIHAR AND ORS. wherein the Supreme Court has held that "they are temporary employees working on dailywages. Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the 1.D. Act. The concept ofretrenchment therefore, cannot be stretchedto such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts . their disengagement is not arbitrary." He further relied on the rulings reported in 19943LLI ( Supp ) 754 wherein the 4948

THE GAZETTE OF INDIA : AUGUST 4, 2007/ SRAVANA 12. 1929

[PART 11--Su . 31ii ]

empingces to be absorbed . I find the Peritioners cannor claim formeinstatement or regularisation in services ofthe Respondent Bat

is Eumber, the representative list the Petition ะเ contended that pasimilarases , his Tribunal had vedered freinstatement with back wages and these disputes are הנב similar in namus auence . the Peritinnery are entitled f the same relict .

19.Bl . I find since the Supreme Court has held at Temporary empire de cor smirk claim 3:13 rights or reputan ma's herause they have completed day's of contumeras service in period of 12 calendar ronths and the Suprem Gour. has also held that cach suse must hemsidered on www merit and the changes ghaben subsequent decisans of the Supreme Gurt peaballs having regard the changes in the policy decisions of the Gest in the wake of prevailing markei veroms, globaliston aivaastien and outsourcing is dert. I fin . ! Petiti is not emilled ro claim regulator reostalernert in the RespundealBank as aleged by him . Therefore. Faulpoint penы пе question of confirmation of an employee upon the expiry nif purported period of probation would not arise ." Further . in CTXJ 2006 SC 395 MUNICIPAL COUNCIT SUJANPUR VS. SURINDER KUMAR, the Sujeenie fourt has held tha "it is not dispared that the appointment of the Respirident was not in sanctioned post. Being a "State" within the meaning of Article 12 of the Constitutin of India. the Appellant for the purpose of recruiting its employees wils hound to follow the secruitment rules . Any recullmerl made in violation of such rules as also in violation 0: constitusional -scheme enshrined pruler Article 11 and 16 of the Constingtion of India wuruld be void int law. " Further . in 2006 21.1.24 89 MADHYA PRADESH STATE AGRO INDUSTRIESDEVELOPMENT CORPORATION VS.S.C PANDEYwherein the Supreme Court has held that "ool because an employer had worked for smure than 210 of service by that itself would not confer any legal right upon him to berzgular ised in service." The Supreme Coun als held that " the changes brought about by the subsequent derisions of this court probably having regard 10 the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evidem , in view of the senlee legal position , as moriced hereinbefore "

Point No. 2 :

The next pris to be decided inthis case is to whal reset the Thrones 201

Intewodmy loveguengfiadusthat the Petitioner Is it Lemporary priplusze and the not caritled in te absorhet in regular sevir made permanent merely on the strength of such coarinaange of work . I find the Petitioner is not entitled to any releas claimed by him . Na C'ests .

21. Thus,the relerence answered uccordingly

Dicraac tu the P.A. day the 31st Janгу 2007 . wribed and typed by ham , me in the open court on this

K. JAYARAMAN . Presiding Officer

Witnesses Exumined:

For the Petiгіопет

16. Relting on all these decisions , learned counsel for the Respandent contended that since the Peterifimer has not been appointed for regular post or has he been appointed in regular vacancy or sanctioned post . the Petitioner is not enritted to claim regularisation of his service Further, when they have not been questioned the live settlements entered anto between the Respondea Bank and Federation and since they have nut questioned the wiwit list prepared by the Respondent/Bank , they are пел entitled re dispute the same and they are estopped from doing . Further , their prayer before the labour authorities was only to restore the wait list and aliso fur appointmear therexon as temporary messenger as per wait list . Under such circumstances . alter expiry of the periud mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allomed to them. Unadci such circumdances , it cannot be questioned by the Petitionser. !

WW : SiM Dhiinsuraj Ww . Sn V.S. Eikambauauri

Fer the Respondeam MW ! SriC Mariappan MW2 Sri C. Ramalingaro

Documents Marked :-

2.No Dare

Description

Xerox cupy of the paper pahlication in July Thanthi hasert on Lix. ML .

ביא 2104-68 Хегох copy of the administrative guidelines issued by respondent /Bank Tor implementarnonolEx . MI .

17 Lind much force in the contention of the learned counsel the Respondent . Though in the Claim Statement. the Petitionershave made so many allegations with regard to preparution ofwait list and also seulements entered intu between Use Respondent/Bank and Federation , at the Line of reference . bey have not questioned the settlemeur זון the nuraber allotted 10 each individual in the wait lis1 Further, the Pelitioners have no questioned the serrlement and they have pot alleged that settlement was not a boni code in nature or it has been arrived at on account of mala lude, misrepresentarion , fraud or even corruption or ther inducements . Under such circumstances , I find the Petitioners carpot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary

210-9 ! Хекx copy of the circular of Respondent /Bank ro all Branches regarding absorption of daily wagers in Messenger vacances .

भाग 11-..खण्ड 3( ii ) ]

W4 01-405-91 Хегоx copy of the advertisement in the Hindu on daily Wages based on Fx , W4.

ws 2008-91 Хегox copy of the advertisement inThe Hindu extending Period of qualifying service in daily wagers.

15-03-97 Xerox copy of the cireular letter ofZonal Office, Chennai Aboum filling up of vacancies of messenger posts. 25-02-97 Xeras copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31.3 97.

Nil

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to du messengerial work .

19-03-87 Xeros copy of the servісе сеrtifiсате issued by Tambaram Branch.

WIO Ni

Xerox copy of the service certificate issued by Tambaram branch .

27-05-88

WI )

Xerox copy of the service certificate issued by Tamburan Airforce station branch .

20-08-92

W12

Xerox copy of the service certificate issued by Tambaram AFS branch. 04-01-94

₩13

Xerox copy of the service certificate issued by Guindy Branch .

01-01-95

W14

Xerox copy of the service certificate issued by Meenambakkam Branch .

30-12-96

WIS

Xerox copy of the service certificate issued byMeenambakkam Branch .

WIG N

Xerox copy of the administrative guidelines in reference hook on staff matters issued by Responden /Bank regarding recruitment to subordinate care and service conditions .

אלוד

Xerox copy of the reference book on Staff malters Vol . III consolidated upto 31-12-95.

06-03-97

₩18

Xerox onpy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

06-03-97

₩19

Xerox copy ofthe call letter from Madurai zonal office For interview of messenger post-K. Subburaj .

06-03-97

₩20

Xerox onpy ofthe call letter from Madurai zonal office For interview of messenger post- J. Velmurugan .

17-09-97

W21

Xerox onpy ofthe service particulars -J. Velmurugan .

4949

भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

26-03-97

W22

Xerox copy of the letter advising selection of part time Menial -G. Pandi .

W23 31-13-97 Xerox copy of the appointment order to SriG. Pandi.

Feb. 2005

W24

Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No.395 ofMadurai Corcle.

13-02-95

W25

Хетох сору оf the Madurai Module Circular letter about Fingaging temporary employees from the panel ofwait list. 09-11-92

W26

Xerox copy of the Head Office circuler No.28 regarding Norms for sanction of messenger shaff.

W27 09-07-92 Χεrux copy of the minuses of theBipartite meeting.

09-07-92

W28

Хеток сору of the settlement between Respondem/Bank and All India Staff Bank of Indie Staff Federation for implementation of porms -creation ofpart time general agendants .

07-02-06

W29

Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general anendamıs

W30 31-12-85 Xerox copy of the locat Head Office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management :-

Lix.No. Ite

Descripcion

MI 17-11-87 Хегох onpy of the settlement .

Хетоx copy of the seulement .

16-07-08

Хетоs copy of the settlement .

27-10-88

Хегол copy of the settlement .

00401-91

Хегоx copy of the settlement. 30407-96

M6 09-06-95 Хегоx copy of the rainutes of conciliation proceedings.

M7 28-05-91 Xeгox copy of the order in W.P. No.7872/91 .

M8 15-05-98 Хегох copy of the order in O. P. No. 2787/97 ofHigh Court ofOrissa.

M9 10407-99 Хегоx copy ofthe order ofSupreme Court in SLP No. 3082/99 ,

MIO M

Xerox copy of the wait list ofChemai Module .

25-10-99

M11

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

4950

THE GAZETTE OF INDIA : AUGUST 4. 2007/SRAVANA 13. 1929

[PART -SFC. 3( 0 ) | नई दिल्ली, 19 जुलाई , 2007

referred this dispute earlier 10 the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 150099 and issued notices toboth parties Both sides entered appearance and filed Their claim statement and Counter Statement respectively. After the constitution of this CGIT Cuth Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunat has numbered it as 1. [D.No. 231/2004.

का.आ. 2179 , औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणः अर्थ न्यायालय , चैत्रई के पंचाट ( संदर्भ संख्या 231/2004) को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-7-21807 को प्राप्त हुआ था ।

2. The Schedule mentioned in that order is as follows:-

सं एल-12101 2/434/ 98- आईआर ( बो-1 ) ] अजय कुमार, डेस्क अधिकारी

NewDelhi , the 19th July,2007

"Whether the demand of the workman Shri G. Murugan , wait list No. 557 for restoring the wast list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so, to what relief the said workroen is entiled?"

3. The allegations of the Petitioner in the Claim Statement are briefly as frillkuWS:-

S.O. 2179. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 2311 2004) of the Central Government Industrial Tribunal Labour Cоцет, Chennai as shown in the Annexure in the Industrial Dispute between the management of State Bank of India and their workmen , receivedby the Central Governmention 19-7-2007.

(No. L-12012/434/98- TR (B. [ 3 ] AJAY KUMAR , Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, CHENNAL

Wednesday, the 31st Jummary,2007

PRESENT:

K.JAYARAMAN, Presiding Officer Industrial Dispute No. 231/2004

(Printipal Labour Court CGID No.150/99)

(In the mattet of the dispute for adjudication under clause (d) ĐỂ Sub- section ( 1 ) and sub - section 2 ( A) of Section 10 of she Industrial Disputes Act , 1947 ( 14 of 1947), between the Management of State Bank of India and their workmeni

BETWEEN

SriG.Murugan

: Party Petitione

AND

TheAssistar General Manager , Party / Management StateBank of India, Z.O. Chennai

APPEARANCES

For the Pentipner

: Sri V. S. Ekambaram , Authorised Representative.

For the Management

M/s . K. S. Sundar, Advocates

The Petitioner was sponsored by Employment Exchangefor the post of sub staff in Class IV cadre in State Bank ofIndia and he was given appointment as messenger after an interview and medical examination. He was appointed co temporary basis at Pallavaram branch from 1-9-1983.The Petitioner was orally informed that bis services were no more required . The aim- employment of the Petitioner and others became subject marmer before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petision No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank . in addition to its counter. filed a copy of settlemein under section 1841 ) reached between management of StateBank uf India and All India State Bank of India Staff Fexleration and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment aften 1985-86 were classified in the settlemeal was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the Classification was unreasonable , the Respondent/Bank brought the notice of the Petitioner about the interview to be held through advertisements . The Petitioner atso submitted his application in the prescribed formar rhrough Branch Manager of the Pallavaram Iranch . He was called for an interview by a Committee appointed by Respondent Rank in this regard . But , they have not informed the result of interview and also with regard to appointment .But , the Petitioner was informed urally tojain as the branch where he initially worked as a class PV employee . From 1 9-1983, the Phelitioner has been working as a lemporary messenger and some time performting work in other branches also While working in temporary basis in Service branch , anther advertisement by the Respondent/Bank was made regarding casual workers who were reported tu AWARD

1. The Central Government Ministry ofLabour,vide Order No. L- 12012/434/98- TR (B- I ) dated 10-2-1999 has

be in service during the same perind . While the Peticiones was working as such , the Manager of the branch informed thePetitioner orally on 31-3-97 that his services are bou 4951

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[भाग खण्ड ( ii) ]

required any more and he need not attend the office from 1-4-97. Hence, the Petitioner raised a dispare with regard to bis non - amployment . Since the conciliation ended in failure, thematter was referred to this Tribunal for adjudication . Though reference was sent in this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has tarde a fresh representation 10 Govt . to reconsider the reference and the Petitioner requested the Respondent Bank to continue to engage him in service as obtained priorto 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up un unreasonable stand that the service and the number of days worked hy Petitioner were treated as of no consequence, since according to the Respondent /Bank , it engaged the Petitioner only in temporary services after the sertlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do out merit consideration . The Petitiones was not a party to the settlement mentioned by the Respondent/Bank teloce the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnantto Section 25G & 25H of the I.D. Act . The termination of the Perisioner is again the provisions ofPara 522 ( 4 ) of Sastry Award. Liven though the settlement speaks about three categories only a single wast list has been prepared and the Respondent Bank has been regularising according to their whim and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. in the temporary workmen which amounts 10 violation of relevant provisions of circular . The RespondenuBank engaged the Petitioner and extracted the save work either by payment of petty cash or by directing him to work under assumed name or by both which aភាព រា te unfair labour practice . The wait list suffers serious intimities and in is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner pray's to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

when their case was espousedby State Bank of India Stati Federation which resulted in five settlements dated 17-11-87,16-07-88, 07-10 88,9-1-91 and 30-7-96 . The said settlements became subject matter of conciliatino proceedings a pinutes were drawn under Section 18 (3) of I.D. Act . Innorms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly plaved other temporary employees and the Petitioner was wait listed as candidate No. 553 in wait last of Zonal Office, Chennai . So far 357 wait listed temporary candidates, out of 741 wait listed temporary camployees were permanently appoinmed hy Respondent/Bank . Itis false to allege that the Petitioner worked as a tempoгагу messenger . The Petitioner was engaged only in leave vacancies as and when it arose . Whenthe Petitioner having submitted to selection process in terms of settlements drawal as per retrenctument provisions referred to ilbove, cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Linder the settlement . employees were caregorised asA.B. and C. Considering their temporary service and subject to other eligibility criteria , vndea category ( A) the semporaгу employees whu were engaged for 240 days were to he considered and under category (B ) the temporary entployees who have completed 270 days aggregate temporary service in any contimous block of 36 calendar months and under category ( C ) the temporary employees who have completed 30 days aggregate tensporary service in any calendar year after 1-7-15 on minimum 70 days aggregate templary service in uny contimanus block of36 calendar months were to he considered. As per clause 7. the length of temporary service was in be considered for seniority in the wait list and it was also agreed that wait list was ko lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies whwh were to arise impio 31-12-1994. The wirioner has mo valirt and enforceable right for appointment . The Respondent luxd implemented the voluntary retirement scheme and even the permanent vacancies stond substantially reduced . There were no regulor vacancies available. The peculiar problem was due 10 the facts that all the aforesaid tempoсату employees were working in leave vacancies and not in regular permanent vacancies. In rerms of aforesaid seanlemenis, out of 744 wait listed candidrtes , 35 temporary employees were appointed and since the l'etitioner was wait listed at 553 he was not appointed . The said settlements were bone fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the seulements directly or indirectly uryd his claim is liable to be rejected .Further , the said settlemen were not questioned by any union so far and the settlem's of bank level settlements and operated throughoun te country . The Tamil Nadu Industriai Establishment (Conferment ofPermanent Status to Workmen ) Act, 153) does not apply to Respondent/Bank and this Tribunal has nojurisdiction to entertam such pica. It is not correctto say that documents and identity of Petitioner was verifier ! before the Petitioner was engaged . It is also not correct to 4. As against this, the Respondent in its Coupler Statement alleged that reference made by the Govt . for adjušication by this Tribunal itself is not maintainable . The Petitwner was not in continuous service . Hence , the question of regular appointment / absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18 ; 1 ) and 18 (3 ) of LD . Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bunk . The claim of the Petitioner is not bona firte and madewith ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent Rank engaged the temporary employees for performance of Cuties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and

3218G1.07-18 1952

THE GAZETTE OF INDIA : AUGUST 4. 2OUT/SRAWANA

say that the Pentioner was discharging the work of permanent messenger . As per sertlements , vacancies upte 31-12-94 were filled up against the wair list of tempoгэгу employees and vacancies for 1995-96 hus to be tilled up It the last drawn fur appuintinent of daily wapes ! casual labour . Further . for circle of Chennai wait bst of daily wages was not finalized and hence not published und there is onlyone want list for the appointment of tem carployees .After the expiry of wait list , the Petitioner has a claim for permanent absorption . Hence . for all these "casons , the Respondent prays to dismiss the claim with costs

In the additional lasa stalernen , the Peririnnci Gerended that he was Jhaving been sponsored by employment exchange and having undergone medical esamination. the Petitioner has fulfilled the criteriu set out The Responden /Bank fur selection of candidate fai anpointucem in the post of messenger and other class IV pu . He was engaged in the messenger pust in the sutnaie cadre of the Respondent/Bank continuously wim deliberate anul artificial breaks . Therefore. The RespondenyBaak is duty bound to regularise the services of the Pedrer as he has acquired the voluable right ensarined in the Constitution of India. In the year 1998. the Respondendak has issued a circular tu the effect that uneet no pirci . nstances , was listed persons like the Perttioner he eraged even in menial category, thus , the Respondea Bank imposed total ban for his future en:pl : n.ea , Ben though there were sufficiem Lumber of vacancies in class 19 category, the Respondent/ Bank deliberaresy relayed is filling up the vacancies by the wail Esical surkmen wth ulterior mative . The RespondentDinh jas bezni arbitrar ! Bling up the vacancies with the persens her au wait listed workinen scoording to their whims and fanctes. Hence , the Petitioner prays that an award may be passed in his cacour.

6. Agairs, the Petitioner filed a rejoinder the Coxie Stareinen: of the Respondem, wherein it is saated all the sentlemens made by the bank with the State Bank ví Inglis Staff Federatisere under section 18( 1 ) of the Act and not under Secaiur. 18 ( 3 ) of the Act . As per recruitment rules of the Resposten Bank, recruitment of class IV stafl in the Responder/Bank is in accordance with the instructions taid do we under codified circulars of the RespondentBank Iven in the Writ Petition before the High Court in W. 2. No.7872 of 1991 , the Petitioner questioned the settiement dated 27-10-88 and 9-1-91 . 1: is faise to allege that in : settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays thar an award may be passed in his 'avour .

In these consideretica are: cumstances , the points for my "Whether the demand of the Feritioner in Wat Ltst No. 557 for restoring the wait list of temporary messengers in the Respondent' Bank and consequential appointment thereupon as lemporary messenger is justifier?"

PART TI- SEC 31 , on "To what relief the Petitioner is erilailed ? " Poiot No. 1 :

8. La his case, on behali of the Petitioners contended that the Petitioner in these and the Petitioners ir be connected industrial disputes have been spornsured liy Employment Exchange and they having beer salied for interview and has ing beer, selected and wait listed interms ofthe relevant guidelinesing ulars of the Respondent/Bark in permanerit vacancies ir subordinate cadre temporar Lasis . Afror engaging them. 17termittently fur some years . the Petitioner in this case and other Peririoners in the connected disputes vere terminared without any попсе Since the RespoximBank terminated several lemphicary employees it. the year 1985. the Sitare Bank Linployees Inion jnad filed a Writ Petstion belore the Supreme Cour to protect the legal and constituunal ziglets of the workmen cuncerned and while the matter was pending in Wrt Petirinn No 542 ( Civil ) 1987. the Respurdent/Hank hurriedly entered into a settlement un the issue of absorption o temporary employees as filed in before the Supreme Cuurl at the time of final hearing of the West Petition . This settlemem has become ar exhibit of the Respondent Bank and has been marked as lix MI . The Peritioner in this case and the Petitioners in be connected cases attacked this sellemem as it is not birding on them on the grund that they have been interviewed and selected in the permanent vacancy and Responder Bank without any intimation st notice demes an opportunity to work in the bank alter 31 3 1997 and therefore , they have cased the dispate in the year 1997 before the labus authorities and they questioned the tenencinment as unjust and illegal and they further prayel ko resnstatement with hack wages and other arrendam benefits .

9.On behalf of the Petitiores . it is contended thar These Peritioners were recruited as lemporary employces ir the Respondent/ Bank under the guidelines and circulars issued by the Resulent/Bank from time to ime and Turther . the same guidelines carry the procedure for regularisation. el service of the remexorary employees and any settlement it. Its regard is redundant and in any case, the Petihuners not bound by settlement uritler Section 1801 ) eatered inte bezween the alleged Federation and the Respondent Management . They further contended that thoug) : the Respondent / Barns has stated that the Petitioner has not worked fru more than 240 days in it wontinuous period of 12 calzadar months and was ont in continบบนร service on 17-11-987 , therefore, they have nu valid and enforceable right for sppointment , in the wake of strict instructions and circciars/ guidelines issued by the RespondentBusk is the effect thu ! temporary employees al branches / offices are mut allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further . they have invoked the relevant provisions of Chapter V A of the [ D. Act and is prepostermus to contend that the Perisioner has no valid and entorceable right for appointment as Section 25G and 25H are very much applicable the Petitioners who are retrenched messengers 4953

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[ भाग -खण्ड 3 ( i) )

statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in theCounter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, io which it is stared that it is clear that the 1987 settlement was concerned with the temporary class IV employees whu were paid scale wages as per Bipanite Settlement while the 1988 settlemeru dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , as rightly contended the Respondent are not justutred unct prinshined the list of candidates covered under 1987.eulenient and 1988 settlement since they formed two distinct and separate collasses and they cannot treat one class and their action undoubtedly BOUDIS 10 violation of Article 14 of Constitution of India. Further, the averiment of MWI and the statements in Counter Stalernent me contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank hy combing equals with unequals . It is further contended on behalf of the Peririoner that as per deposition of MW1 wait list under Ex M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of of industrywise settlement , il is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . Bul , Ex .M3 provides for the same norms to the casuals as in the case of (emary employees in the matter of absorption. Therefore, it is violauive of Anucles 14 & 16 of Constitution of India . Therefore, the Petioner contended that preperation of Ex.M | namely wait list is not inconformity with the insanctions. ofEx.12 and non - preparation off separate panels amounts to violation of cincular . Scoondly , it hus not been prepared as per instructions in Ex . W2 carcular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released published even after the Court orden in WMP No.11932/91 in W.P.No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1 B- 88 . Furthermore , wait list under FA.M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex . M 10 bas been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . MI was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Mudurat and only during the year 2003 the Respondent Bank procduced thewait list Ex .M10 before this Tribunal marking it as a confidencial document . 11 is further commended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy . they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further.even before om afier the settlement on absorption of temporary employees , the expression that they were engaged in leave and are eligible to be reinstated . Teamed representative for the Petitioner contended that in 1996 LAB & IC. 2248 CENTRAL DANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V.Auf the [.D . Act providing for retrenchment is not enactert only fix the benefit of the worlumen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H be restricted only to one callegory ul retrenched workmen . Therefore . De cunreation of the Respondent/Bank that the Peritinner has no vulid and enforceable right for appointment is unenable . It is further contended that on behalf of the Petitioner shal Lix W2. W.3 arul WB as well as Ex. M8 which constitute /relate to the corcular instructions of the Respondent/Bank issued (THERI time to lime in connection with the implementation of the serilements on absorption and which are: statutory in character. Further , a combined study of Ex.MI and the averrients of MMW ] and MW2 and their testimonies during the cross - examination will clearly show how the bank has atiw deal to the Petitioner from the begarming linking his fumure with the settlements . Further , Clause I of Ex . Ml deals with categurization of retrenched teпротаг ) employees into " A , B and C" , but this categorization of "A. t& f " is quite opposed to the doctrine ol "last conse fust ge of' firstcone-- last yo ' and therefore , the categorization in Clause is illegal . Clause 1 ( a ) of Ex MI provides an opportunity to persons who were engaged on casual basis zrd allowed to work in leavefcasual vacancies of messengers . farashes , cash coolics , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engagirig casuals to do messenperial work is in contravention of the guidelines mentioned in Reference Book un Staff matters . cepeof which is markeal as Ex. W8 . Further , the appопіте of daily wage basis for regular messengerial johs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engagedby the Respunden Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have nut been informed about this amendment which includes casuals affecting their interest and chance. Further , as pes Fnstrucrines in Ex .W2 four types of waiting lists have in he prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M LU in this case. Those candidates under Ex.MID were found suitable for appointment as messengers inkt sweepers . Even W L is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.MED that it was prepared based on the settlement dated 17-11-87, 27-100-88 and 9-1-91 which are marked as Ex.MI. M3 and M4 respectively . Rat , when MWI has spoken about the setlemenis , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court orcer is there, but he has not prochuced any document in support of the so called non - inclusion except his bald PAR II-SEC . Зі THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANA 12, 1929

ofRespondent Bank has application to the Petitioner's cise.The Perininners have completed the service of 240 opys and more in a continuous period of 12 calendar months as enshrined sider sections 2SB and 25 of the Industrial Disputes Act, therefore ,their retrenchment trom service is illegal and against the mandatory pinvisions of Section 75 and therelure. They an: deemed to be in continuu service of the Respondent/Barix and they are entitled to the benefits under the provisions of 1.D. Act . It is further contended on behalf ofthe Pentiones that though some of the Petitiomers in the connected 1.125 . have not completed 241 ) Jays, since Hue RespondentBan's has not taken imo consideration and ant included the Sundays and paid holidays as days un which the Pelinoners have acnuaily worked and hence , they have also completed 140 days in a period of 12 calendar months . He also relied on the malings reported in 1985 1 11 539 WORKMEN OF AMERICAN EXPRESS INTERNATIOΝΑΙ . BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has neid that the expression actually worked under the employer cannot mean thar those days only when the wachanen worked wallı aammer, sickle or per. but נית neessarily comprehend all those days iluzing which they were in the employmeal of the empinger and fu which he had been pand wages either under express or implied contract of service or by compulsion ot slatute . landing nuders etc. It is further, angsed that call feters produced by the Petutionen will clearly prove that he Respondent/Bank has conducted the interview and selected the temporary employees who have reросте have submitted their application for absorption as per the bank's circular and therefore , their recrenchment is illegal In all these cases , the Petiheners were in employment as substaff in carly 1980s but se denied further engagement on account of setiemenshapsing of wall lists and out of These Petitioners some os them have completed 240 days and more in a continuous period of 12 calendar nuanhs and they are in age group of 2010.50 years and for ao ful uf tbeins. 1ney find thereselves strimdeel in life midstream. They have also not gainfully employed . In circumstances, this Tribunal has tu pass an award in their

10. But , as against is the learned senior counsel for the Responden /Bank contended that the reference made by the Government itself is on : maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence, the question of regular appointment'absorption does not arise at all und their engagement was tot authorised . Further , the Petitioners ure estupped from making claim as they accepted the settlements drawn. under the provisions of Sections 1845 : and 183int the I.D. Act , in lieu of the provisions of san and implemented by the Response Bank and the claim of the Petitione's me not honafide and are made with ulterior move mulher, they have concealed the material facts that the Petitioner was wait Easted aspet vacancy was used as a device to take them out of the principal clause 2 (00 ) of the F.D. Act, 1947. Though the Fetilioner's work the Respondent/Bank is continuous anil though the Petitioner has performed the duties sly which is still in existence , the categorisation as such is hard the provisions of Sastry Award are alsoviolared. Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH VS. RESERVE BANK OF INDIA AND OTHERS when the Supreme ( int has held that to employ wurkmen as badlies' auals or temporarics and to continue them as such for rauny years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Leamod representative fusher contended that Ex.M 10 wai ; Fist has not been prepared in accordance with yninciple of senioriay in lae legal sense,since the selected candidates with Cungesl service should have priority over those who joined the service lezer and therefore , the wast Isst under Ex . MIO which has been drawer up is contrary to law and also box in law Thus , the Respondent Bank has nor acted in succordance with the law and the spirit of the settlement, hur in caer violation and in breach of is . Though clause 21e ! 32 Ex . Mt slates that andidates found suitable kr peemanen appointment will be offered appointment against exisriag/future vacancy anywhere in module or circle and in case. a andidate fails to accept the offer of appointment fps within the prescribed period, he will be deemed 10 have relased it and the warme shall stand deleted froπι the respective panel and the shall have no further claim being insidered for permanent вррозатment in the banik . Thi : Respondenu/Bank has not produced any document to show how he has arrived at the seniority and tuli date, it is mystery as to who that senior was and there is no documentary evidence in support of the averment and ulse for the averment of MW ] Therefore, the terminaison of the Peritimer who was in reguller service of the Respondent Bank is bitrary malafide and illegal and the Respondent Bank has not acted in accordance with the ternis of settlement on ion of temporary employees Ihough the Respondent Bank has produced Fix. Má which alleged to be aspy of mizules of conciliarion procvedings die 9-6-25 before Regional Labour Commissioner (Central) . Hyderabad, ir is neither a 18 ( 3 ) settlebear ner 12(3: settlemarras claimed by the Respondent/Bank which suy only with regard to modification of Ex . Ml to M4 made in lerins of Ex M6 . Though the Respondes /Bank produceć Lx MM interim orders passed by High Court of Madras in WMP No. 1193291 in W.P No. 7872/91 ceased to have any relevance when the main writ has been disp el in the 1999 and therefore , they do not have any bearing in the case of the Petitioner . l'urther , though the Renée Management has examined two witnesses . the depussion of management walnesses diuing the cross examenelion had become apparent that they have personal krows ledge about the senlements which ure marised is Ex. MI to MS Above all though the Respondentuck has referred 10 voluntary retirement scheme In the RespondentBank it was implemented only in the year 200 degasrirates past reterence perick ! and nonce evidence 4955

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| भाग 11- खण्ड 3 ( ii ) ]

first category, if the settlement was reached with a representative umion of which the contesting workmes were rmembers and if there was nothing unreasonable or unfair in the terras of the settlement, it must be binding on the contesting workanen also ." He further relied on the rulings reported in AIR2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. V& STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the fire: will of the parties and is apointer to there being good will between them. Whea there is a dispute that the seulement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could he subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer roust be fair and reasonable ." Relying on all these decisions, learned counsel for the Respondent contendert that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one wmong them , they have entered into settlement with the hank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on thero and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended thar though the reference made in this caseand other connected disputes is 'whether the demand of the workman with wair list Nurober given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?" The Petitioner contended that the retrenchiment anade by the Respondem/Bank is nou valid and he has to be reinstard in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Government is not valid. Further . in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and nut reinstatement as alleged by the Petitioner in the Claim Statement .

12.But, as against this on behalf of the Petitioner it 26 contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that "mere wording of reference is not decisive in the maner of Lenability of a reference. Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the maperial before it , it has only on dury and that is 10 decide the points on merits and not to find out some technical defects in the wording of reterence , subjecting the po workman to hardship wnvolved in moving the machinery again." It further held that "the Tribunal should look into length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by EmploytuentExchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation were bonafide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the setdement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and bis claim is liable to be rejected. Furthermore, the said settlements were not questionedby ony union and the settlements were bank level settlements and operate throughout the country . Further, he relied on the rulings reported in 1991 1.11 323 ASSOCIATED GLASS INDUSTRIESLIDA VS INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12( 3 ) the union eruered into a settlement with the management seuling the claim of 11 workmen and the workmen resigned from the tob and received terminal benefits, but the workmen raised a ples before the Tribunal that they did not resiga voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud . misrepresentation or coercion, the settlement is binding on the workmen . " Learded counsel for the Respondent L'urther nelied on the rulings reported in 1997 LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS whercin the Division Hench of the Bombay High Court has held that "Therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority wnio will be binding on all workmen of the establishment , even those wing belong to the minority union which had objected 10 the same. To shat extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employer or a minority untion from scuttling, the settlement . " la further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of sanch allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration." Learned counsel for the Respondent funher relied on the rulings reported in 1997 TLJ 308 K.C.P. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Suprense Court has held that " settlements are divided into two categories namely (i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the 1.D. Act and (ii) those arrived al in the course of corkatiarion proceedings under Section 18 ( 3 ), A sertlement of the first category has limited application and biods merely parties to it and settlement of the second category made with a recognised majority union has exterkled application as it will be binding on all workmen of the establishment. Even in case of the 4956

THILE GAZETTE OF INDIA : AUGUST 4. 2007 / SRAVANAR

Р.ST 11-5 : 30 ) :

the pleading and find out the exact nature of pleading of the Petitinaci tu find out the exact nature of dispute instead nfselusing to answer the relerence on merits. " Further ,he argued that the Tribunal has got power to go into the questown whether the Petationer is to be reinsaared in serive or not fur which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATILAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAI . & ORS . wherein TheMadhya Pradesh High Court has held that " the Tribunal cannot go Behind the ternis of reference, but that does not mean that it cannot look intus the pleadings of parties."He atso relied on the rutings reported in 1998 LAB TC 1507 A. SAMBANTHAN VR. PRESIDING OFFICER LABOUR COURT, MADRAS, wherein it has been held that it has been repeatedly held that the Labour Court should not anetapt to consider the order under reference in a ceclorical manner or a pedantic manner , bui should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported inATR 1993 SC 569 the Supreme Court has held tha! " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the munoer which would prolong the industrial adjudication. The Labour Coun is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and gasunable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , be representative for the Petitioner argued tha though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled 10 the back wages as alleged by him. Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance

13. I find some force in the contention the representative for the Petitioner . Therefore, 1 find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or Dot?But, I find that the settlement was validly entered inge between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the scttlemeir .

in the select ist on the basis of cunipetitive examination acquires a right of appointment in Government service in an existing or a future vacary . " In that case , pruning of select ist ut reduction imber of vacancies was charle in view of the empeiding absorption oi steam surplus.maff and apolicy decision has been taken to reduce the number uf vacancies and consequenly , a certain raiber of buttom persons were reznused Itum the select list and the remaining selectees were given appointments according to their comparative merits In whica , the Supreme Court has held That in such circumstances , denial of appointment is the persons removed from the select list is not arbitrary and discriminatory." He father zehed on the rulings reported in 1997 6 SCC SEA SYNDICATE BANK & ORS VS. SHANKAR PAUL AND OTHERS whereint the Supreme Coure has held that "hy its letter dated 7-2-87 the bank informed the Respondenrs ilia : the pinel was valid for one yesi only and that incusing of their raines in the panel was not to cunler on them any right im seek pern appointnient in the secret the bank . Considering the ohject with which the panel was prepared and the fact that itwas a yearly yonel expiring or. 6-2-98. we are of the opini that the Respondents did not get any right because if inclusion of their names in the will or pe absorption in the services of the bank . Whatever conditsunal right they had enme an end with the expiry of the panel . The claim ofine Resyndels as contained the W.P. was thaus . mi conceived and therefore, the learne Single Judge and the This ision Rench . when it first decided the appeal were right in dismissing the Wrin Petitive and the appeal respectively ." He further relied on the t צמינו reported in 1991 SILANKARSAN DASH VE UNION OF INDLA wherein the Supreme Court has heid thut "cardidates included in merit list has no indeicasible right to appointment even if a vacanty exists " and relying on all these decisions , learned courisel for the Respondent commended that sunce the Petitioner has no right to question the wait list and since there is ki mala fide on the part of the Respondent/Bank in preparing the wait list . it cannot be said that preparatior, of wait list was neade witle mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997. the Petitioner canent plead fur restoration of the wint list and ac cannot pray for reinstatement as alleged tv hin . l'urther, he relied on the rulings reported in 1992 T.AR IK 2168 STATE OF HARYANA AND ORS , VS. PIARA SINGH AND OTHERS wherein the Supreme Court has held that' ' now coming to the directiva that all these ad- hoc temрогегу employces who have curtanued for more than 1 year should he regularised , we find it difficu're sustain it . The direction has been given without reference in the existence of a vacancy. The direction in effect means that every ad- hoc/ temporary employce who has been uintonued for one year shouldbe regularised even though ( a) no vacancy is available for him which means creation of a vacancy ; ib) he wils nut sponsored by Finployment Exchange not washe appointed in porsaance ci a notification calling for applications which means be hapentered by a back doer: (c) he was not eligible and qualified for the post at the time 14. Then the learned counset for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings. reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VUERSH wherein the Supreme Court has held that the only question which falls for determination in this appeal is whether a candidate whose name appears 4957 [ भाग -खण्ड ( ii ) ]

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13, 1929

their disengagement is not arbitrary." Ile further relied on the rullings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of `last come - first go ' is not mandakry bar only directory , on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not establishedwith any evidence that his juniors were made permanent by the Respondenv Bank. Anyhow , if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and therefore , the claim is to be dismissed with COSIS.

15. Learned Senior Advocate further argued that even int recent decision reported in 20064 SCC I SECRETARY, STATE OF KARNATAKA VS. UMA DEVI, the Supreme Court has held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled tobe absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of sclection as envisaged by relevam rules . It is not open to the Court to prevent regular recruiument at the instance of tevaporary employees whose period of employment bas come to an end or of ad -hoc employees whoby the very nature of their appointment , do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a positioαι τα bargain not at arms lengch since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alope, it would not be appropriate to jettison the constitutional scheme ofappointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently.By doing so , it will be creating anothermode ofpublic appointment which is not permissible." Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in tens of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, be would notbe entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was pot ronde by following a chue process of selection as envisaged by relevant rules.Furtbea , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD . AND OTHERS VS. SOMVIR SINGH, wherein the Supreme of his appointment ; (d ) his record of service since bis appointment is not satisfactory . These are the additional problems indicated by ns in para 12 which would arise from giving of such blanket orders .None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad -huc employee for one year , it cannot he presumed that there is need for regular post. Such a presumption may be justified only when such continuanc extends to several years . Further, there can be no nole of thumb in such matters . Conditions and circumstances of אתר: wזינו may not be the same as of the other . Just because inone case, a direction was given to regulurise employees wh have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The reliefmust bemoulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act het a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders of lower County . He further relied on the decision reported in 1997 TT SCCASHWANI KUMAR AND OTHERS Vs. STATE OF RIHAR AND OTHERS wherein the FullBench of the Supreme Court has considered the above regularisation ofappointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned,it isto he noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or om ad hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy. question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation as given, it would be an exercise in futility .To would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees, therefore, remained a nullity." "Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SOC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that "they are tertiporary employees working on daily wages. Under these cirhemstances, their disengagement from service cannot be construed to be a retrenchment under the I.D. Act The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , 4458

THE GAZETTE OF INDIA : AUGUST , 2007/ SRAVANA 13, 1929

Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question nf confirmation of an employee upon the expery of papirerl period of probation would not arise . " Further, in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR VS. SURINDER KUMAR, the Supreme Court has held that "in is not disputed that the appointinent of the Respondent was no in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitmem rules . Any recruinsel made in violation of such rules as also in violation o consriturional scheme eristirined under Article 14 and 16 nfshi: Constrution of India would be void in law " l'urther . in 20062 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VESC PANDEY wherein the Supreme Court has held that "only Because an employee had worked for more than 240 days of service by that itself would not ennfer any legal right ולאן into regularised in service. " The Supreme Court auso held that the changes brought about by the sursequent decisions of this court probably having seerd to the charges in the policy decisions of the Goverrument in the wake il prevailing market ocynkimy , glubalisti privatisation and outsourcing is evident . in view of the settled legal position , as noticed hereinbefore." i

lé . Relying on all these decisions . learned counsel Tur the Respondent contended that since the Peutioner has rot been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Pentiuner is mal entitled 10 claim regularisation of his service . Ferroer. when they have not been questioned the five ttirments entered into between the Respondent /Bank and Federation and since they have not questioned the wait list prepared by the RespondenuBank , they are no entided to dispute the same and they are estopped froci doing so lumber, their prayer before the labour authurit was only 10 restore the wait list and also for appointmear thereon as temporary messenger as per wair list . Under such circumstances , after expiry of the period mentioned in the scaiements which were subsequently amended by settlements . the Petitioners cannot now question either the preparation of wait list or mumber allotted to them . Coder such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention nithe leamed counsel for the Respondent. Though in the Claim Statement, the Petitioners have mode so many allegations with regard 10 preparation of wait lisa and also settlements entered into between theRespondenu/Bank and Federation , at the tune ofreference , they have not questioned the settlement nor the number allotted to each individual in the wait list. Further,the Peritioners have not questioned the setderent and they have not alleged that settlement was not a bona tide 10 natuunt of it has been arrived ut vo account of mala tide , misrepresentation, fraud or even corruption or other inducements. Whader such circumstances , I find the

PART II SLC ) ] Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown befure this Tribunal that the Rexindent/Bank has gou sanctioned posts for temporary employees to be absorbed. I find the Petitioners cannul claim for reinstatement or regularisation in services ofthe RespondentBank

13. Further , the representative for the Petitioner contended that in a similar case, this Tribunal had ordered for reinstatement with kaak wages and these disputes are alwsimilar in rature and hence , the Petitioners are entitled Kor the same reel .

19. But . I find since the Supreme Court his held that temporary employees are not entitled to claim any riglets lur regularisation . merely because they have completed 110 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that zach case must be consacred on its metal and the chienges brought about by the subsequent clecisions of the Supreme Court probably ina ing regard to the changes in the ph deciszurns of the Closetcnent in the wake of prevailing marker economy , globalisation . privatisation and outsourcing is evident . 1 And the Petitioner is net entitled toclaim regalar reinstatement in the Responderit H.mk as alleged by him . Therefore , 1 find this point against thePetinierei .

Point No. 2:

The next point to be decided this case rebel the Petitioner is ruled

20. In view of my foregoing findings that the Jelitanici is a tenary Losplayce and he is not emitledto be absorbed in regulat service or made permanent merely on the strength of such coritarice of wish. I find the Petitioner is rout entitled many aglief asclairned by hiเท. ก Costs

21. Thus , the reference is answered accordingly .

Dictated to the transcribed and typed by him . conected and prenounced by me in the open court on this day the 31st January 2017 J

K.JAYARAMAN. Presiding Officer Witnesses Examined :

For the Peinone WA: So G. Murugan WWISE V.S. Ekambaran For the Respondent : MWI Sri C. Mariappan MW2 Sei C. Ramalingam Documents Marked:-

Liv.No. Date

Description

WI 1-8-38 Xerox copy of the paper publicamon 10 daily Thunthi based on Ex. Ml .

W2 20-488 Xerox copy of the administracitive guidelines issued by RespondentBanik for implementation ofEx .Ml .

4959

भारत का राजपत्र अगस्त 4, 2007/ श्रावण 13 , 1929

[भाग -खण्ड ( ii) ]

W21 26-03-97

W3 244-91

Xerox copy of the letter advising selection of part time Menial G.Pandi.

W22 31-03-97

ХетоR copy of the circular of Respondent /Bank to all Branches regarding absorption of daily wagers in Messenger varmacies.

Xerox copy of the appointment order to Sri G. Pandi .

W4 01-05-91

Feb 2005

W23

Хегохx copy of the advertisement in The Hindu on daily wages based on Ex .W4.

Xerox copy of the pay slip of T. Sekar for the month of February , 2005 walllist No.395 ofMadurai Circle .

20-08-91

13-02-95

W24

Хеллох copy of the advertisement inThe Hindu extending period of qualifying service to daily wagers.

Wo 15-03-97

Xerox copy of the Madurai Module Circular letter abour Engaging temporary employees from the panel of wait list .

09-11-92

W25

Хетол copy of the circular letter of Zonal Office, Chenoai about filling up of vacancies of messenger posts .

Xerox copy of the Head Office circular No. 26 regarding Norms for sanction of messenger staff.

09-07-92

W26

Xerox copy of the minutes of the Bipartite meeting

25-09-97 Хегоx copy of the circular of Respondent/Bankto all Branches regarding indentification of massenger vacancies and filling them before 31-3-97.

0947.92

127

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

Xerox copy of the instruction in Reference Book on staff about casuals not to be engaged at office/branches to do massengerial work .

07-02-06

W28

11-04-92 Хсгох copy of the service certificate issued by Chamiers Branch .

2-06-88

WIU

Kerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

Xerox copy of the service certificate issued by Pallavaram branch .

31-12-85

W29

WL1 27-08-88 Xerox copy of the service certificate issuedby Pallavarain branch.

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

W12 17-12-90 Xerox copy of the service certificate issued by TriplicaneBranch .

For the Respondent/ Managerment :-

2304-97

W13

Ex.No. Dille

Description

Xerox copy of the service certificate issued by service branch

Xerox copy of the settlement

1711-87

03-07.89 Xerox copy of the interview letter.

W14

Хелоx copy of the settlement

16-07-88

WIS NI

Хетоx copy of the settlement

27-10-88

Хегоx copy of the setticment .

09-01-91

Xerox copy of the administrative guidelines in reference book on staff maners issued by Responden/Bank regarding recruitment in subordinate care& service conditions .

Xerox copy of the seulement.

30-07-96

W16 N

M6 09-06-95 Xerox copy of the minutes of concilstun proceedings.

Xerox onpy of the Reference Book en Staff matters Vol . W consolidated upto 31-12-95.

M7 28-415-91 Хетол copy of the order in W.P. No.7872/91 .

06-03-97

WIT

MS 1505-98

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V . Muralikannan.

Хегол copy of the order in O. P. No. 2787/97 ofHigh Courtof Orissa .

06-03-97

WEB

M9 10-07-99 Хаток сopy of the order of Supremat in SLP No. 3082/99 .

Xerox copy of the call letter from Madhurai zonal office for interview of messenger post-K Subburaj .

MIO Nil

06-403-97

W:9

Xerox copy of the wait list of Cheunai Module.

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-3 . Vehnurugan .

25-10-99

MIL

17-03-97

W20

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

Xerox copy of the service particulars- J. Velmurugan.

3218 GI07-19 4960

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 , 1929

नई दिल्ली, 19 जुलाई, 2007

कहा. आर. 2180, औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रश्णधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरणा श्रम न्यायालय , चेत्रई के पंचाट ( संदर्भ संख्या 247/200%) कां प्रकाशित करती है, जो केन्द्रीय सरकार को, 14-7-2007 को प्रगत हुआ था ।

[ सं. एल -12012/489/98- आईआर ( बी 1 > J अजय कुमार, डेस्क अधिकारी

NewDelhi , the 19th July,2007 5.0.2180.-In persuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. 247/ 2001 of the Central Governmen Industrol Tribunai -cum- Labour Court , Chennai as shown in the Annexure in the trial Type between the management of State Bank Indit and theis wurkmen , received by the Central Governo τη π. 19-7-2007.

No. L- 120012 /489/98- IR ( R. [ 1 ] AJAY KUMAR . Desk Officci

ANNEXLIRE BEFOR: NIE CENTRAL GOVERNMENT INDUSTRUL TRIBUNAL CUM-LABOUR COURT, CHENNAI

Wer nesday, the 31st January , 2007

PRESENT

K.JAYARAMAN , Presiding Offцаг Ina istrial Thispute No. 247/2004 Princips. Labour Court CGID No. 174/99) i

jis the matter sof the dispute tor adjudication under clause (i) ofsub - sectio: ' 1 ) and sub section 2 ( A ) of Section of the Industrial De putes Act, 1947 ( 14 of 1947 ), hetween the Management of : rate Bank of India and their workmen ]

BETWEEN

SriP. Manickam

[PART Π. SF . Mill the dispuse on its file as CGIE) No. 174/99 and issued trotices to both parties. Anth sides entered appearance and filed their claim statement and Counter Statement respectively . Аблет не схопstitution of this CGFF- cum -Labour Court , the said dispate has been transferred to this Tribunul for adjudication and this Tribunal has numbered it as ID No 147/2004.

2. The Schedule mentioned in that order is us follows:

"Whether the demand of the workman Shri P. Manickam . wait tist No. 46 for restoring the wait bist el temporary messengers in the establishment of State Bank of Inglis angl vonsequential appointment shereupon as tenaporary messenger is justified ? If so,to what relief the said worknsan is en: filled "

3. The allegations of the Perisioner in the C'aim Statement are buietly as follows :

: IParty Petitioner

AND

TheAssistant Manager . II Party / Management State Bank of 20. Chenoai .

APPEARANCE

For the Petitioner

: Sri V. S. Likarobaram.

Authorised Representative

: Ms. K Veeramani, For the Manageme

Advocates

AWARD

1. TheCentral Governmem Ministry of Labour, vide OrderNo. L-12012/ 489/ 98 - JR (B - 1 ) dated 12-2-1999 has referred this dispute cartier to the Tamil Nadu Principal Labour Court, Cherusai and the said Tahour Court biis laken :

The Peritioner was sponsored by Employmear Exchange for the post of sub staff in Class IV cadre in State Bank of hukia und he was given appointment as messelg after an interview and medical examination . He was appointed na temporary basis at Triplicane branch from 22-05-1980. The Patitioner was oralky infurmed in his services were is mute required. The non - cmplеутем оf the Petitioner and others hecame subject matter beture Supreme Court in the form of Writ Perition faled by State Bank Farmployees in in Wril Petition No. 5/12/87 which was taken up by the Supreme Court The Responden Haark, in addition to its counter . filed a copy of settleme under section 1811 reached between management of State Bank and Ali India State Bank of India Sta Federation and the seulement is with regardsorptun of Class IVtemporary workmen who were denied employment after 1985 Sti were classified in the settlemen was under considerarion once again and they classified Ilie workinen under three categories namely A. Barid Though the classification was unreasonable , the Respondeat/Back broughtto the porice of the Peritrimes about the interview to be held through advertisenses The Petitioner als submitted his application in the prescribed formatthough Branch Manager of the Triplxare branch Fle was called for an interview by a Commitrce appoimed by Respondent/ Bank in this regard . But , they have not informed the cool anterview and also with regard to appointment . Bu , the Tetitioner was informed crally to join atthe branch where he initially warked 25 2 class TV einpionee Itum 22-05-1980. the Peritioner has beer. working as a temporary essenger and some times performing werk in other beaches also While working on temporary basis : Nengambakkam branch , another advertisement by the Respondeni Bank was made regarding wiledal workers who were reported is the in service during the same period. While the Petitione: was working as such. the Managers the branch intermed the Petitioner orally on 313 97rhathis services are notrequired any more and be reed not attend the office from 1-497. Hence , the Petitioner aised a dispute with regard 10 4961..

भारत का राजपत्र अगस्त 4, 2007/श्रवण 13 , 1929

[भाग खण्ड (ii) ]

his non - employment. Since the conciliation endeel in failin the aziter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner. he has inade a fresh representation 10 Govt . in reconsider the reference and the Petitioner requested, the Respondient Bank to continue to engage hint in service as obtained prior 10 31-3-97 and to regularise hish in service iti due course. The Respondent/Bank took up an unreasonable srand that the service and the inluntber of day's worked by Petitioner were treated as of no consequence, since according to the Respondent Bank, it engagett the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and mummber ofdays worked by him efter interview do not merit consideration. The Petitioner was not a party the settlement mentioned by the Respondent/Bankbefore the conciliation officer. Therefore, the Respondent's action in not absorbing him in regular service is unfrüst and illegal . Further , the settlements art repugnant to Section 250 & 25H of the I.D. Act . The termination of the Petitloßer is against the provisions ofPara 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wart list has been prepared and the Respondend Rank has been regularising according to their whims and fancles: The Respondent/Bank has also not observed the instractions régarilling grant of inicirements , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank eftgaged the Petitioner arid extracted the samework either by payment of petty cash orby directing him to work under assumed name or by bata wirich amounts : tu unfair labour practice. The wait list suffers serious infirminies and it is not based on surict seniority and without any rationale. Hence , for all these reasons the Petitioner prays togrant reljef of regular employenent in Respondent Bank with all attendant benefits

4.As against this , the Respomient in its Counter Statement alleged that reference made by the Govt . for akdjudicationby this Tribunal itselfisodt maintamable: The Petitioner was not in continuous service . Hence , the question of regular appointment / absorption does not arise. The engagement of Petitioner was not authorised . The Petitioner'is estopped from making elaim as per Claim Statement. The settlement drawn ander provisions . of Section 18 ( 1 ) and 18(3 ) of LD. Act In lieu of provisions of. Law , resrenchment and implemented hy Respondont/Bank The claim of the Petitioner is not bonatide and nade witr ulterior motive. The Petitioner onociealed the material facts that he was wait listed as per his length of engagement and.. could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent . Bank angaged the temporary employees for performance.. of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are chiming permanent absorption and. when their case was espoused by StateBank of India Staff. Federation which resulted in five settlements dated 17-11-17, 16-07-88,07-10-88.9-1-94 and 300-7-96. The said

settlements became subject matter of conciliatio proceedings and micakes were.drawn under Section 18(3 ). of 1.D.Act. In teatras thereof , the Petitioner wan considered for permapeal appointment as per his eligibility along with similarly placed other temporary comployees and the Petitioner was writ listed as candidare. No. 446 in wait list ofZonal Office , Chennai . So far 357 wait listed beppредагу candidates , out of 144 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitiriker wais engaged only in leave vacancies as and when it'arase. When the Petitiuter having submitted to selection process in tetins of settlements. drawh as per retrenchment provisions referred to above... candoi torn sround and claint appointment. Soch of those teosporary comployees who were appelmed were engaged " for more mimber of diry's and hence, they were appointedi Under the settlement, employees were cattegorised as A,B , and C. Considering their temporary service and subject tri other eligibility criteria, under category (A) the tiempoпагу .. employees who swére engaged frir 240 days were to be considered and under category ( B ) the temperary employees who have completed 270 days aggregate temporary service ifi any continuous block of36 calendar months and under category (C) the temporary employers who have completed 30 days agpreglite temporary service: .. in any calendar year after 1-7-75 or minitium 70 days aggregate temponity service in any continuous block of36 calendar months were to be considered . As per clause . the length of feriapbrary service was to be considered for seniority in the weil list and it was also agreed that writ-list. was to lapse in Diceenther, 1991 and the cut off date wali extended rapto 31-3-1997 for filling a vadancies which were to arise upto 31-12-1994. The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even The permanent vacancies stand, substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and pot to regular permanent vacancies . In terms of aforesaid settlements, out of744 wait listed candidates, 357temporaty employees were appointed and since the Petitionet was waitlisted at 446 he was not appointed. The said settlements were bonafide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped : from questioning the settlements directly or indirectly and his claim is liable to he rejected.Further,the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act , 1981 does mrit apply to Respondent Bank and this Tribunal bas no jurisdiction to caterisin such ples. It is that correctto say that documents and identity ofPetitioner was verified before the Petitioner was engaged. It is also not tomed to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary PART 11- SEC. 3 4962

THE GAZETTE OF INDIA : AUGUST 4. 2007 / SRAVANA 13, 1929

Polat No. 1 :

employees and vacancies for 1995-96 has to be hiked up against the wait list drawn for appointment of daily wages / asual lahour . Further . for circle of Chennal want list of dailywageswils not l'analized! and hence not published and there is only one wait list for the appointment of learnрмагу employees. After the expiry of wait list, the Petitioncı hας no claim for permanent absorption . Heace, for all these reasons , the Respondent prays in dismiss the claim with

8. In this case, un behalf of the Petitioner it is Contended that the Thetitioner in this case and the Petalioners in the connected industrial disputes have been sponsored by Employment Fischarge and they having been called fo interview and having been selected and wait listed in les of the relevant guidelines Aorculars of the Responden /Rank in permanent vacancies . Insubordinine cache onteтрогагу basis. Alter engaging them intermittently for some years . The Petitioner in this case and other Petitioners in the cuturected dispures were terminated without any Since the Respondent Bank lerminated several temporary employees in the year 1985. the Stute Bank Employees Lijun had flied a Writ Petition belore the Supreme Court prorect the legal and cons tuhonal rights of the workmen concerned and while the " Miller was pending in Writ Petition No. 542 Civil; 1987. the Respondent Bank touriedly entered into a settlement or the issue of absorbtion of temporary employees and led before the Supreme Court at the time of lunal betong of the Writ Petition . This settlernent has become an exhibit of the Responden , Hack and has been marked as Ex . C. The Petitioner in this case and the Pelisoners in the currected cases attacked this settlement as it is now bangliang, hit them on the ground that they have been interviewed and selected in se peтталеп vacancy and Respera /Bark without any intimation or notice denied an appertunity to work in the bank afier 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour athorities and they questioned the returnchmear as unjust and illegal and bey Surther prayed for reinstatement with back wages and other allerulant henefits.

5. In the add claim statement , the Petitioner runtended that he was having been sponsored by employment exchange and having undergone medical exazpinariog . the Petitioner has fulfilled the criteria ser r by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class TV post . He was engaged in the messenger post in the subamiinate cadre of the Respondent/Bank cuminously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duiy bound to regularise the services of the Petitioner as he has acquired the valuable nghs enshrined in the Constitution of India . In the year 1998 , the RespondentBank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in meniat category , thus , the RespondentBank imposed total han for his future employmem Even though there were sutlicient nuariter of vacancies in class IV category, the Responden/Bank deliberately delayed in filling up the vacancies by the wait Giszań workmen with userior motive . The Responden:Bank bas been arbetrarily filling up the vacancies with the persons other than wait listed workmen according to their whitts and fancies . Hence, the Petitioner prays that an award may be passed in his favour .

6. Again , the Teritinner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the setrieaments made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and nut under Section 1813 ) of the Act . As per recruitment rules ofthe Respondent/Bank . recruitment of class IV staff in the Teespondent /Bank is in accordance with the instructions laid down under codified circulars of the Responden Bank . Even in the Writ Peution before the High Court in W P.No. 7872 of 1991, the Petitioner questioned the sehlement dated 27-10-88 and 9-1 91. It is falsete allepe that the settlernents are contrary 10 the rights ofthe Petitioner. Hence, the Petitioner prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration are :

زق) "Whether the demand of the Petitioner in Wail List No. 446 for restoring the wait list of temporary messengers . In the Respondent/ Rank and consequential appointment Thereupon as temporary messenger is justified?""

On belarda the Petitioner , it is contenrled tthal these Petitioners were recruited as temporary employees in the RespondentBank der the guidelines und circulars issued by the Respuulen Bank from time to time and further, the same guidelines Carry the procedure for regularisation of servave of the remporary employees anil הy settlement in this regard is redundant and in any case . the Petitioner is at hound by settiement sider Section 18111 entered into between the alleged Federation and the RespondentManagement They further contended that though the Respeklem Bank has stated that the Petitioner has not worked for more than 240 days in a conti ถ ง บน period of 12 calendar months and was not in cu عهاعاد service na 17-11-1987 , therefore, they have no valid ar enforccable right for appointment, in the wake of strict Instructions and circulars / guidelines issued by the Itespondent/Bank to the effect that temporary employees at branches / offices are not allowed in be in service cxcceding 200 days , hence the question of Petalouser working for 240 days dues not arise at all . Further , they have invoked the relevant provisions of Chapter V A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and entorceable right for appointment as Section 150 and 25H are very much applicable to the Pesnicners aho are retrenched messengers and are engible to he reinstated . Learred representative for ( ) "To what relief the Petitioner is entitled?"" 4963 [ भाग - खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 4, 2007/ावण 13 , 1929

Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list Further theHop'bleHigh Court has held in its order dated 23-7-99 in W.P.No.7872 of 1901 , which is marked as an exhibit, in which it is stated that it is clear that the 1987 settioment was concerned with the temporary class IV employees who were paid scale wages as per Bipertite Settlement while the 1988 settlement dealt with daily wager in Class TV category who were paid wages daily on mutual agreement haris . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlemem and 1988 settlement since they formed two distinct and separate classes and they cannot treat nue class and their action undoubtedly amoun ماكا violation of Article 14 of Cansirion of India' Further, the averment of MW ) and the statements in Counter Statemem are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent Bank by corobing equals with unequuls. It is further contended on behalf of the . Peticioner that as per deposition of MW1 wait list under Ex.MI comprises of both messengerial and non- messengerial candidates .While the temporary employees were appontert afeci due process of selection and were paid wakes on the basis of industrywise settlement, it is not so in the case of casuuls . Therefore, both belongs to two different and distinct cregories But, Ex.M³ provides for the same norms to the casuals as in the case of temporary employees in the matter of absorptіоn . Therefore , it is violative of Article 14 & 16 ofConstitution of India Therefore , the Petitioner contended that prepartion of Ex.M 10 namely wait list is not inconformity with the issutions of FM2 and non - preparation of separare pancis amouits to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circulau regarding injected vacancies for the period from 1987 1994. Furthermore, no wait list was released / published even after the Court order in WMP No.11932/91 in W.P.Ne.7872/9 ] directing the Respondent/Rankto release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8 88 . Furthermore, wait list under Ex.MID does not carry particulars about the candidates date of initial appointment and she number of days put in by shem to arrive at their respective seniority from all these things, it is clear that Ex. M 10 has been prepared in violation of instructions and ceased in have the credibility attached to thewait hst. Above all , Ex . Mi was not produced at the time of conciliation proceedings beld during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondens /Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalt of the Perisioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement un absorption of temporary employees , the expression that theywere engaged in leave vacancy was used as a device the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND CHERS the Supreme Court has held that Chapter V-A of the E.D. Act providing for retrenchment is not enacted only for tine benefit of the workmen to whom Section 25Fapplies bolor alles of retrenchment . Therefore, the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and en inceable right for appointmear is umedable. It is further comended that on Ixchalf of the Petitioner that Ex . W2 . W.3 and Wa as well as Ex . MS which constiture/ relate to the Cirueckar instructions of the Responden /Bank issued from Gme to time in connection with the implementation of the sel iements on absorption and which are statutory in character. Further , a combined study of Ex M ] and the Evertments of MWI and MW2 and their testimonies during Line: Tuss-examination will clearly show how the bank hes given a raw deal to the Petitioner from the beginning linking his future math the settlements . l'urther , Clause 1 nfFx . MI urais wilt categorization of retrenched temporary empiayces inan A. Band C", but this categorization of A. B& C is quite opposed to the doctrine of "last comme fil geur first come- last go and therefore , the categorization in Clause I is illegal . Clause ( a ) of Ex.Ml provides an Uppurtunity to persons who were engaged in casual hasis alleswed to work in leavefcasual vacancies of messengers, faroshes , cash coolies , water boyх, шеереть ets for absorption along with the other eligible categories of teamporary employees is nou valid . Further, engaging cesaals to do messengerial work is in contravention of the guidelines crentioned in Reference Book on Staff marters . copyofwhich is marked as Ex.WR. Further , the appointment of Caily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's troulars/instructions. In such circumstances , the absorption of casuals along with the elugable categories as not valid . Therefore, these persons who were engaged by the Respondent/Bank on casual bases should not be given permanent appointment in the bank service. Those casuals were given more beneficial trealment in the matter of arriving at qualifying service for interview and selection. But , remporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . L'urther , as per instructions in Fix .W2 four types ofwaiting lists have tobe prepared . But the Respondent/ Bank bas alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.MH) were found suitable for appointment as messengers and sweepers . Even MW is unable to say as in when the wait list Εx .Μ10 was prepared, but it is meanioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.Ml. M3 and M4 respectively . But , when MW1 bas spoken about the settlements ,he deposed that settlement dated 27-10 BB was nvt included in the Madras circle since the High Court neder is there, but he has not produced any document in support of the so called non- inclusion except bis bald statement . Further , according to MWI wait list under 4964

PAR LUSTc. ] THE GAZETTE OF INDIA: AUGUST 4 , 2000STRAVANA 13. 1929

of Respondent/Bank has en application to the Petitioner's case.The Petitioners have completed the service of 240) days and more in a continuous perad of 12 светлаг πλουτεις as enshrined under section 2:58 and 251 of the Industrial Disputes Act. Therefore , their retrenchement from service is illegal and agaiısı the mandatory patinásions ofSection25 and therefore , they are detented to be in continuous service of the Respondent/Bank sind they are caterled to the benefits under the provisions it I.D. Act . 11 is further contended un behalf of the Perisioner that ough we ofthe Petitioners in the connected J.Ds have not completed 240 days , since The Respundent Bank has act taken into consideration inkl ant includeit The Sulpicedulays as days On which the Petitioners have actually worked and hence. they have also completed 240 days in a period út 12 cater-dar muriths Ele also rehed on the rulings reporied in 1985 11 1.1.3 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VE MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL RANKING CORPORATION wherein the Supreme Court has held at the expression aulizalšy worked under the employer cannot mean that those days onty when the workmenworked with hannes , ste pon but must necessarily conspichend all those days during which they were in the employment of the employer and for which he had been punt wages either under express implied contract of service u backpulsion of statute. standing orders etc. It is further , argued that call Letters produced by the Petitioner will clearly prove that the Respondent / Bank las Curluccted the inter ,.ew and selected the temporary employees who have reportedlo have submitted their application for absorption as per the bank's circular and inscrefore, Heir retrenchment is illegal. In all these cases, the Petitioners were in employment us sub staff in early 1980s har wir denied further estarement on account of settlemems /lapsing of wait fists and out of these Petitioners some of them have completed 243 days arul more inamtinuous period of 12 calendar mos and they are in age group of 40 to Sit years and for no faule of reirs , they fiind themselves striunded in life mads ! They have also not gainfully employed . lti such circumstances , rhis Tribental bárti pass an award in their favour. :

in rake them out of the principal clause 2 ( oo ) of the I.D. Act . 1917.Though the Petitioner's work in the Responderit Bank is continuous and though the Petitioner has performied the duties continuously which is still in existence, the categorisation as soch is akit valitt and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC: 201 H.D. SINGH VS. RESERVE BANK OF INDIA AND OTHERS' wherein the Supreme Court has held thal Io employ workmen as 'badlies casuteds or semporaries and to contimie them as such for many years wich the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.M 10 wait lost has not been preparert in accordance with principle of seajority in the legat sense. sinec the sefected candidates with longest service should have priority over those who joined the service letter and therefore , wait list det Lix . M which has been draw up is conarary to lasu and also bad inn law. Thus , the Respondent/Bank has not acted in incordance with the law and the spirit of the settlement . but in utter vinllation and ist breach of is . Though Llane 2tet of Ex . M4 states that candidates found suitable for peirianeait appointment will be offered appointment ugainst existing/ future Vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointmen or posting within the prescribed period, he willbe deemed to have refused it and the name shall stand deleted frum the respeerive pinel and he shall have no further claim for being considered for permanent appointment in the bank . The Responderibank has not produced any docume show how he has arrived at the senioricy and till dace. it is a mystery as th who that senior was and there is ne documentary evidence in support of the averneat and alse for the averiment of MW1 . Therefore , the termination ofthe Pesirioner wito was in regular service of the Respondent' Rank is arbitrary , matu fide und illegal and the Respondent' Bank has not cred in accordance with the terms of settlement on absorption of temporary employees. Though theRespondent tank has produced Tix .Mti which allege ! 10 be a copy of trinutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Centralı . Hyderabud . it is neither a 18 ( 3 ) settlement nor 12(3 ) settlement as clalinsed by the Respondent/Bank which says onlywith regard to modification of Fx . Mi to M4 made in terms of Ex . Mộ . Though the Respondent/Bank produced Ex . M7 and MEJ interim orders passed by High Court of Madras in WMP No. 1193291 in W.P. No. 7872/9 ] veased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Pedtioner: Further , though the Respondent/Management has examinest two witnesses , The deposition of management witnesses during the cross examination hid become apparent that they have το personal knowledge about the settlements which are marked as lix .Mijo M5 Above all , though the Respondent/Bank liss referred to voluntary retirement scheme, in the Responden /Bank it was implemented only in the year200 ! and it constitutes post reference period and hence evidence

10. But as against this , the learned senior counsel for the Respondent/Bank contended that the reference milde by the Government itself is not shuintainable in view of the facts and circumstances of the case. The Petitiomer in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of ngular apprinnenabsorption does not arise at their engagement was aam authorised . Further . the Petitioners are estopped from making claim as wey had accepted the settlements drawn under the provisions of Section 1811 ) and 1912 ) of the ID . Act . is lice of the provisions of law and implemented by the Respondeat Bank and the claim of the Petitioners ateret bona fule and are made with ulterior motive. Further , they have convaled the material facts that the Petitionen was witft listed as per !

{ भाग खण्ड 3( ii ) ]

4965

মাহর, বা রাজ पत्र अगस्त 4, 2007/ आवण 13 , 1929

first category , if the settlement was reached with a representative union ofwhich the contesting worionep were zmorpbers, and if there was nothing unreasonable or unfair in the bering of the settlement, it must be binding on the contesting workanen also, ".He further relied on the rulings reported inAIR2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. VS. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has beld that "scalement is arrived at by the free will of the parties sand is a poiater to there being good will between them. When there, is a dispute that the settlement is not buna fide in nature or that it has been arrived at on account of fraud, misrepresentation or congealment of facts or even corruption and otherand other inducements , it could be subject matter of ject another industrial dispute which an appropriate Govt. may refer for adjudication after -caamining the allegations as there is an yoderlying assumption- that the settlement reached with the help of the conciliation ofliver must be fair and reasonable, " Relying on all these decisions , leamed counsel for the Respondent- contended that though it is ..alleged that they are nel parties to the settlesnont, since the foderation inwhich the Petitioner is pleo noe among them. they have entered..into settlement, with the bank and therefore, it is binding on the Petitioner. Further, be argued thật thị miện: vi the bank hais questioned the selllanent and in such circumstances, it cannot bọ said that it is nou binding on thero and be is, esanpped, from, disputing the same....

11. Teamed counsel for the Respondent further contended that through the reference hade in this case and other connected disputes is "whether the demand of the workinerwith wäir list No. given for restoring the wall list of temporary messengers in the establishment of Respindent/Bank and consequential appointment herenporn as temporary messeitiger is justified? The Permioner contended that the reirencument roade by the RespondentBank is not valid and he has to be reinstated in service with full back wages ete.Hence, the Persilioner's contention against the reference toade by the Govt. is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contendedby the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement. ::

length of his engageznedit and could not be absorbed as he was positioned down inin the seniority. TheThe Respondent Rank,was engaging temporary employees duc so business oxigency for the performance of duties as messenger. Further . The allegation that be was sponsoredby Employment Exchange is incorrect and the allegation, thai he worked as temporary messenger is also incorrect, they were engaged against leave, vacunias. The settlement entered into by hue Respondent Bank and the lederition were borafidewhich were phc.only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly be was waji listed and therefore , the Peptioner is astopped frym questioning the settlement derectly or indirectly and his claim is liable to be rejected. Fay thermore, the said sextorqucas wore mod questionedby any union and the settlements were bank level settlerbeds ani: operate throughout the country. Further , he relied on the palings and in 1991 ILL1323 ASSOCIATED GLASS INDUSTRIES LTD , VS. INDUSTRIAL TRIBUNALA P AND OTHERS wherein vader Section 12 ( 3 ) : the union entered intuigtu settlement with the managerment sertling the clam.of.11 workimen and the worknach resigned from the job and received terminal benefigs, but the workinen raised a pira before the. Tribunal that they did not resign voluntarily ,But the Andhra Pradesh High Court bus beld that in the abspace of plea that the settlement reached in the course of couciliation is vitiated by fraud . misrepresentation of coercion, the seulement is binding on the workomen . Learned coumuel for the ,Respondent Luther relich on the rulings reported in 1997-1189 ASHOK AND OTHERS VS. MAHARASHTRA SEATE TRANSPORT CORPORATION ANDOLERS obergin the Division Bench of the Bombay High Court has held that therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority un will be bunkling on all workmen of theven of the establishment, even those who belong to the miperity union which hadobjected to the same . To that extent, it cleparts from the ordinary law of contracts, the ubject obviously is truphold the sanctity of senlerpents reached witin the active, assistance of the conciliation officer and 10 discourage an individual mployee or a miounty uning from scanling the settlement ." It further hok thar "there may be exceptional cases , where there may be allegations of mala fides , frand or even pruption or other inducements . But , in the absence of Such allegations, a seulement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the colings reported. in 1997 1 LII 108 K.CP. LTD. Vs. PRESIDING OFFICER AND OTHERS, wherein the Supreme Court has held that settlements are divided into two categories damely (2) those arrived at outside the conciliatino proceedings under Section 18 ( 1 ) of the 1.D. ActAct and ( ii) hose arrived at in the course of conciliation proceedings under Section 18 ( 3 ). A settlement of the first category has imited application and binda merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding, on all workman ofthe establishment. Even in case of the 1

12. Put , as against this on behalf of the Petigioner it is contendied that mere wording of reference is not decisive in the matter oftemability of a reference and he relied on the rullings reported in 1998 LAR IC 343 SECRETARY, KOLLAM IMLAHOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM Wherein the Kerala High Court has held that " mese wording of reference is 104-decisive in the matter of tenability of a rебетевое. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the mancrial before it, it has poly on duty and that is to decide the points on merits and not to find our some rechnical defects in the wording of reference, subjecting the poor workman to bardship involved in moving the machinery again." la further held that "the Tribunal should look into (PART II-S ..

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THE GAZETTE OF INDIA : AUGUST 4. 2007 / SRAVANA 13. 197

the pleading and find out the exact nature of pleading of The Petitioner το fund out the exact nature of dispute instead of refusing on answer the reference on merits. " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinscated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He aisn relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER. LABOUTR COURT. MADRAS . wherein it has been held that it has been repeatedly held that the Labour Court should not altempt to consider the order water refererice in a technical manner or apedantic manner . but sbould consider the order ofretereaue in a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1991SC50 the Supreme Court has beld that "the Tribunal hasjurisdiction to consider all incidental matters also and the anter off reference should not be construed in the amer which would prolong the industrial adjudication . The Labour Court is expected to decide the real native of dasputes bellween the parties and with thar object in view. ir should consider the order of reference in a fair and reasonable manner , though the order of reference is nut happily framed nor was it fromed to the high expectation of the Labour Court . " Kelysng on all these decisions. the representative for the Petitioner argued that though in the reference. it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent' Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13. I find some force in the contention representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given in or Dot? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is now questioned by any of the unions of the Respondent Bank, I find the Petitioner is not entitled to question the seulement .

in the select list on the basis of competitive examination acquires a righi af appointment in Govt. service in ur existing or a future vacancy " In that case , pruning setect list on seduction in number of vacancies was made in view of the imeending absorption of steam surplus stall and a policy decision has been taken to reduce the numbe of vacancies and consequently . s certain number of t personswere removed from the selectList and the remaining selectees were given appointments according to their comparative merits . In which . the Supreme Court has held that in such circurnstances , denial of appointment to the persons removed from the select list is not arbitrary эткі discriminatory." He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court hus held that "by its letter dated 7 2.87 the bank. informed theRespondents that thic panel was valid lur vue year only and that inclusion of their names in the panel was not to confer in them any right to seek permanent ppointment in the services of the hank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expirmgun 6-2-98, we are ofthe oрілюв That the Respondents did not get any right because inclusion of their nantes in the said panel for permanent absorption is the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel .The claim of the Respondents as contained in the W.P. was thus . πορείved and therefore, the learned Single Judge and the Division Bench , when it first decided the appeal were rigla in dismissing the Writ Petition and the uppeal respectively ." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH vs. UNION OF INDIA wherein the Supreme Court has held that "candidares included in merit list has no indefeasible Tight to appoinment even if a vacancy exists " and relying on all these decisions . learned counsel for the Respondent Lonrended that since the Petulionet has no right to question the want list and since there is no mala l'ile on the part o the Respondent/Bank in preparing the wait list . it cannel be said that preparation of wait ist was made with mala fide motive. Unxer such circumstances . after the expiry of the date namely 31-3-1997, the Petirioner cannot plead for restoration of the wait list and he cannot pray for reinstatenient as alleged by him . L'urther , he relied on the rutings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . VS. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now comingto the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised , we find in difficult to sustain it . The direction has been given without reference to the existence of a vacancy . The direction in effect means that every ad -hoc! temporary employee who has been continued for one year should be regularised even though ( a ) nu vacancy as available for lijm which means creation of a vacancy: (b ) he was not sponsoredby Employment Exchange nor was se appointed in pursuance of a notification calling fot applications which means he had entered by a back done ( c) he was nut eligible and qualified for the post at the time 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that be has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannon question that he should be reinstated in service and he relied on the rulings. reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VHEESH wherein the Supreme Court has held that the only question which falls for determination in this appeal is whether a candidate whose name appears 4967

भारत का राजपत्र : अगस्त 4 , 2007/ श्रावण 13 , 1929

[भाग -खण्ड (ii) ]

their disengagement is not arbitrary." He further reliedon the rulings reported in 1994 3 LJJ (Supp) 754 whacin the RajasthanHigh Court has held that "Under Section250 of the LDAct retrenchment procedure fullowing principle of 'last come first go ' is not ramadatory bot only directory, on sufficient grounds shown, the cumployer is permitted to depart from the said principle retrenching seniors and retirining juniors . Though in this case, the Petitioner has alleged that bis juniors have been made permanent in banking service, he has not established with my evidence that his juniors were made permanent by the Respondent Bank. Anybow, if the Petitioner has shown anything, the Respondeun/Bank is ready 10 establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of,Respondent/Bank cannot be given to the Petitioner and, therefore, the claim is to be dismissed with CUSIS.

15.Learned Senior Advocate further argued that even in recentdecision reported in 20064 SOC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI, the Supreme Coort hus beld that merely because a temporary employee or a casual wage worlur is continued for a time beyond the tem of his appointment, he would not be entitled to be absorbed in regular service or made permumeat merely on the strength of such continuance, if the original appointment was not raade by following a due process of selection as envisaged by relevant rules . It is not open to theCourt to prevent regular recruitment at the instroce of temporary comployees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right. " Further, it has also beld that it is not as if, the person who accepts an engagement either temporary or casual in nature is not awatre ofhis employment. He accepts the camploymen with open eyes. It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to cke out his livelihood and soupes whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuale illegalities and to buise the view that a person who has teamporarily or casually got comployed should be directed to be continued permanently. By doing so , it will be creating mother mode ofpublic appointment which is not porznissible." Further. the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant roles and after a proper competition sunong qualified persons, the same would not confer my right on the appointee.....It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the tern of his appointment, he would Tot be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following adue process of selection as envisaged by relevant rules . " Further, inCDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH, whereinthe of bis appointment ( d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in parn 12which would arise from giving ofsuch blanket orders .None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere exendnuation of an ad- hoc employer for one year , it camnol be presumed that there is need for regular post. Such a presumption maybe justified onlywhen such continuaисе extends to several years. Purther, there can be no rule of damb in such matters Conditions and circumstances of one umit may not he the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must bemoulded in cach case having regard to all the relevani facts and circumstances of that case. It cannot be a mechanical act but ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . Thus , the Supreme Court set aside the onders oflower Court.He further relied on the " decision reported in 1997 IT SEC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS where in theFullBench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confimurtion or regularisation of an irregularly appointed candidate would arise, if the candidate concemed is appointed in an irregude manner or on ad-hoc basis against an available vacancy which is already sanctioned. But , if the initial cutry itself is Unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent un such a nод existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount todecorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore, remained a nullity." Therefης, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they barve only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank, Further, be relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that "they are temporary employees working on daily wages . Under these circumstances, their disengagnant from service cannot be construed to be a retrenchment under the LD. Act. The concept of retrenchment therefore, cannot be stretchedto such an extent is to cover these employees. Since they are only daily wage employees and have no right to the posts,

3218 407-20 4968

THE GAZETTE OF INDIA: AUGUST 4, 2007 / SRAVANA 13 , 1929 [PART II-SEC. 3 (ii ) ]

Petitioners cantol now question the settlements at this slage and since they are only temporary employees and since it is nor shown before thus Tribunal that the RespondentBank has gut sanctioned posts for temporвгу employees to be absorbed. I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

18. Further , the representative for the Petitionel contended that in a similar cases . This Tribunal had undered for reinstatemen with back wages and these dispunes are also similar in laware and hence the Petitioners are entitled For the sanse relict.

19 But , dindince the Supreme Court has held thai temporary employees are riu ; entitled to claim any rights for regularisation . merely because they have completed 240 days of continuous service in a period of t2 calendar months and the Supreme Court has also held that cach case must be curasidered in its own merit and the changes bought abour hy the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Gost in the wake of prevailing market economy , global satini, privatisation and outsourcing is eviden . I tind the Pentorer is riot entitled to claim regularisarion or reinstatement in the Respondent/Bankas alleged by him Therefore . I read this point against the Petitioner

Suprerat Court luas held that "regularisativo furthermore , is not a toode of appointment and if appointment is made without following the rules , the same being a nullity, the questionul confumation of an employee upon the expiry ofpurported period of probation would not arise. " Further, in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPLUR Vs. SURINDER KUMAR, the Supreme Court has held thai "itis nou dispuned that the appointment of the Respondent was not in sanctioned post. Being a' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the seentitment rules . Any recruitment mude ind violation of such rules as also in violation uf constitutional scheme enshrined under Article 14 and 16 oftheConstitution of India would be void in law. " Further . 0 2006 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C.. PANDEY wherein the Supreme Court has held that "only because an employee had worked for more than 240days of service by that itself would not confer any legal riglu pore him to be regularised in service. " The Suprette Coun alsu held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt, in the wake of prevailing market economy. globalisation , privatisation and outsourcing is evident . in view of the senled legal position, as noticed hereinbefore. "

l'oint No. 2:

The next or be decided in this case is to whal relief the Peritioner is entitle

20. In view of my foregoing findings that the Petitioner is a tempo y employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of wurk , I find the Petitioneris not entitled to any rebet as claimed by him . No Crists .

21. Thus . The Telerence is answered accordingly .

(Dictated to the P.A... transcribed and typed by him, corrected and prosourused by me in the open court on this day the 31s1 anишу . 2007.1

K. JAYARAMAN, Presiding Offic

Witnesses Examined:

16, Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner bas nos been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitiones is not entitled to claim regularisation of his service Further, when they have not been questioned the five settlements entered into between the Respondeni /Bank and Federation and since they have not questioned the wait tist preparedby the Respondent/Bank, they are 101 entided to dispute the same and they are estopped frum doing so . Further , their prayer befure the labour authorities was only zu restore the wait list and also for appointment hereon as teaтporary messenger as per wait list. Uakler such circumstances, after expiry of the period mentioned in the settlements which were subsequently amended by scnternents . the Petitioners carmot now question cicher the preparation of wait list or number allotted to them . Under such circumstances , it canunt be questioned by the Petitioner

For the Petiti WWL Stil Manickam ww2 Sri V.S. Ekainberum

For the Responent MW; SriC . Mariappan MW2. Sri C. Ramalingam

Documents Murked :

Fx .No. Date W] [-08-88 Descripriçis Xerox copy of Ilse paper publication in daily Thanthi based on Lix .M1 .

17.1 tiod much force in the contention of the learned counsel the Respondeat . Though in the Claim Starement, the Petitioners have made so many allegations with regard in preparation of wait list and also setticments entered into between the Respondent/ Bank and Federation, at the time of reference, they have not questioned the settlement nor The number allotted to each individual in the wait lisr . Further , the Petitioners have not questioned the settlement and they have nut alleged that settlement was not a buna file in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or other inducements. Under such circumstances , I find the

W2 20-04-88 Хетоx copy of the administratitive gukdelines issped by Respondent/Bank for implementation ofEx .M1 .

[ भागखष्ठ

भारत का दराजपत्र अगस्त 2007 सावण 13 , 1929

W3 244-91

4969

W20 17-03-97

Хегоx copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacacies.

W 101-05-91 Χεται copy of the advertisement inThe Hindu on dailyWages based on Ex, W4 .

20-08-91 Xerox copy of the advertisement inThe Hindu extipring Period of qualifying service to dailywagers .

15-03-97 Хетол copy of the circular letter of Zomal Office, Cheanai About filling up to vacancies of messenger ports .

25-03-97 Хегов copy of the circular of Respondon /Bank to all Branches regarding indentification of massenger vacancies and filling them before 31-3-17.

Xerox copy of the instruction in Roference bouk no staff about casuals not to be engaged at office/branches D du shasscomplai work,

بان 21-06-83 Хеток copy of the service certificate issued by Triplicate Branch .

W10 23-01-42 Xerox copy of the service certificate issued by Nuagumbacham branch.

W11 1842-52 Xerox copy of the service certificate issued by Chintaedripet branch.

Xerox copy of the service particula I. Velmurugan

W21 26-03-97 Xerox copy of the letter advising selection of part time Menial-G. Pandi

W22 31-03-97 Xerox copy of the appointment order to SriG.Pandi

W23 Feb.2005 Хегоn copy of pay the slip of T. Sekar for themonth of February, 2005 wait list No.395 ofMadurai Circle

W34 13-02-95 Xerox copy of the Madurai Module Circular letter about Lingaging temporигу empinyces from the panel ofwait list

W25 09-11-92 Xerox copy of the Head Office circular No.28 regarding Norms for sanction of messenger staff

W26 09-07-92 Xerox copy of the minutes of the Bipartite meeting

W27 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of normos creation of part time general attendarus.

W28 07-02-05 Xerox copy of the local Head Office circular about Conversion of part time cmployees and redesignate them as general attendanıs

W29 31-12-85

W12 10-01-08 Xerox vopy of the service certificate issued by Town Branch.

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadine

FortheRespondent/Mangement:

Ex.No.Date

W33 25-01-05 Xerox copy of the letter from Petitioner for service Service being Issued to Deputy General Manager , StateBank of India, chennai ,

WIS N

and Postal receipt, Жерол созду оf Вие aplnowledgement card WIS N

Xerox copy of the administrative guidalipos in reference book on staff matters issued by Respondent/Bank roguarding recruitmeal to subordinate care & service conditions.

W15 Ni Xerox popy of the Referance book on Staff maulan Vol . II consolidated upto 31-17-95.

W'17 06-03-97 Xerox copy of the call letter fromMuscl zopal office for Tmorview of messenger post-V. Mhurlik مي

W18 06-03-97 Xerox copy ofthe call letter from Madurai zonal office For interview ofmessenger post-K. Suhburaj

WIY 06-03-97 Xenen copy ofthe call letter fromMadurai zonal offies For interview of messenger post-J . Velmurugan

Description

M1 17-11-87 ΧεττιX copy of the settlement .

M2 16-07-88 Хетох copy of the senlenent .

M 27-10-88 Χατυx copy of the settlement.

M4 09-01-91 Xerox copy of the settlement

M5 30-07-96 Хегох copy of the settlement.

М6 09-06-95 Xerox copy of the minutes ofgenetintion proceedings.

MITT 28-05-91 Хегол copy of the order in W.P. No.7872/91 .

MB 15-05-98 Хетох copy of the urder in O. P. No.2787/97 ofHigh Court ofOrissa.

M9 10-07-99 Χετυισopy of the order of SupremeCourt inSLP No. 3082/99.

M10 NI

Xerox copy of the wait list of Gmai Module.

25-10-99

Μ11

Χετox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1993/99.

4970

(PART SEC . Hii ) ] THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 , 1929

नई दिल्ली, 19 जुलाई , 2007

the dispuse on its file as CGID No. 164/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively . After the constipation of this CGIT- cum Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal bas pumbered it as I.D.No. 237/2004.

follows: 2. The Schedule mentioned in that order is as कर.आ. 2181.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 143 की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डियाके प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , चैत्रई के पंचाट ( संदर्भ संख्या 237/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार बचे 19-7-2007 को प्राप्त हुआ था ।

[सं. एल-2012/ 440/ 98- आई अंबर ( थी -1 ) ] अजय कुमार, डेस्क अधिकारी

NewDelhi , the 19th July, 2007

"Whether the demand of the workman Shri K. Raju, wait list No. 1659 for restoring the wait list oftermporary messengers in the establishment of StateBank of India and consequential appointment thereupon as temporary messenger is justified? If so,to what relief the said workman is entitled ?"

3. The allegations of the Petitioner in the Claini Statement are briefly as follows:

Stk. 2181.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the award (Ref. No. 237 2004) of the Central Government Industrial Tribunal.cum. Labour Court, Chennai as shown in the Annexure in the Industrial 17ispute between the management of StateBank of India and their workmen , received by the Central Covemmentiva 19-7-2007.

[No. L-12012/440/98- IR( B- I ) ] AJAY KUMAR. Desk Officer

ANNENTIRE

REFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAI

Wednesday, the 31st January,2007

PRESENT

K. JAYARAMAN, Predding Officer

Industrini Dispute No. 237/2004 (Principal Labour Court CGID No.164/99)

(In the manner of the dispute for adjudiation under clause ( d ) of sub- section ( 1 ) and sub - section 2(A) of Section 10 ofthe Ingdustrial Disputes Act, 1947 ( 14 of 1947 ) , between the Maanagement of State Bank of India and their workmen)

BETWEEN

Sri K.Raju

: [ Party /Petition

AND

TheAssistant General Manager , I Party /Management StateBank of India ,

Z.O. Chem .

APPEARANCE

For the Petitioner

: Sri V.S.Ekambaram,

Authorised Representative .

: Mis. K. Veeramani,

For the Management

Advocates .

AWARD

1. The Central Goverament, Ministry ofLabour vide Order No. L. 12012/440/98 - IR ( -1) and 12-02-1999has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class TV cadre in State Paok of India and he was given appointnsent as messenger after an interview and medical examination . He was appointed on temporary basis at Perambur branch. The Petitioner was orally informed that has services were nu more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Lision in Writ Petition No. 542/87 which was taken up y the Supreme Court . The Respondent/Bank , io addition to its counter , filed a copy of settlement under section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Scaff Federation and the settlement is with regard to absorption ofClass IV Lemporary workmen who were denied employment after 1985-86 দরের classified in the sellerpent was under consideration once ugain and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable, the Respondent/ Bank brought in the notice of the Peritioner about the interview to be beld through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Perumbur branch , He was called for an interview by a Committee appointed by Respondent/Bunk in this regard. But , they have not informed the result of interview and also with regard to appointment . Bu, che Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. The Petitioner has been working as a temporary messenger and some times performing work in other branches also .Whileworking un temporary basis in Thousandlighs branch, another advertisement by the Respondent /Bank was made regarding casual workers who were reported to be in service during the saune period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 .Hence, the Petitioner raised a dispute with regard to bis non-comployment. Since the conciliation ended in failure. the matter was referred to this Tribunal for adjudication.

4971

भारत का सबपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

[भ.ग 11 खण्ड (ii)]

Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govil to reconsider the reference and the Petitioner requested the Respondent Bank to continue to engage him in service as obtained prier to 31-3-97 and to regularise him in service in due course. The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner where treated as of no consequence, віное according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the seulement. The Petitioner was not aware of settlementby which his services and number of days worked by him after inkrview do mat merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bankbefore the conciliation officer . Therefore , the Respondent's action im not absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to Sections 25G & 25H of the ID. Act. The termination of the Petitioner is against the provisions of Para 522(4) of Sastry Award.Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/ Bank has been regularising according to their whirms and fatuies. The Respondent/Bank has also not observed the instructions regarding grant of increments, leave , medical benefits etc. to the temporary workmen which wounds to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the sarne work either by payment of petty cash or by directing hirt to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and withou any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent Bank with all attendant benefits .

of I.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per bis eligibility alongwith similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 659 in wail list ofZonal Office, Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank . lı iş false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot torn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Wider the settlement, employees were categorised as A.B and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the semporary comployees who were engaged for 240 days were tobe considered and under category (B ) the temporaгу employees who have completed 270 days aggregate semporary service in any contimous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered . As per clause7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994. The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary netirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In tents of aforesaid settlements , out of744 wait listed candidates, 357 temporary croployees were appointed and since the Petitioner was wait listed at 659 he was not appointed.The said settlements were bona fidewhich were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said seulements werenot questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferuent of Permancot Status to Workroen ) Act, 1981 does not applyto Respondent/Bank and this Tribunal bas no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not core 10 say that the Petitioner was discharging the work of permanent messenger .As per settlements , vacancies uplo 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of dailywages/ 4. As against this, the Respondent in its Coupler Staternent alleged that reference made by the Govt. for adjudication by this Tribunal itselfis not maintainable.The Peticioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Sections 18 ( 1 ) and 18(3 ) of LD . Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Dueto the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and when their case was espousedby State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-07-88,07-10-88,9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under section 18(3 ) 4972

THE GAZETTE OF INDIA : AUGUST 4 , 2007 / SRAVANA 13. 1929

PART II-SFC . 311] casual labour. Further, for circle of Chennai wait list of daily wages was not finalized and hence nor published and there is only ond wait list for the appointment of temрогагу employees. After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons, the Respondent prays to dismiss the claim with

in the connected industrial disputes have heen sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed interns of the relevant guidelines cincalars of the Respondent /Bank in permanent vacancies in salordinate cadre on temporary hasis. After engaging them interminently for some jears . the Petitioner in this cilse and other Petitioners in the connected disputes were terminared without any autice . Since the Respondent Bank terminated several temporary employees in the year 1985. the State Bank Fampluyees Union had filed a Writ Feution before the Supreme Coun 1 protect the legal and constitutional rights of the workmen ennçemed and while the matter was pending in Weir Petition No. 542 ( civil ) 1987. the Respondent/Bank hurriedly entered into a secilement on the issue of absorption of спихнату етployees and filed it before the Supreme Court at the tinse of final bearing of the Writ Petirion . This settlementhas hocome anexhibit of the Respondent/Bank and has been marked as Ex . M 1. The Petstioner in this case and the Petitioners in the connected cases attacked this settlement as it is nor binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation of notice denied en plumly to work in the bank after 31-3-1997 und therefore, they have raised the daspute in the year 1997 before the lahour authorities and they questioned the retrenchment as unjust and illegall unxi they further prayed for reinstatement with back wages and other allendant benefits.

5 In the additional claim sratement , the Petitioner conrended that he was having been sponsored by employment exchange and having undergone medical examination . the Peririoner hus futfilled the criteria set our by the Respondent/ Bank for selection of candidate fur appointmeur in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberard and artificial breaks . Therefore , the Respondent/Bank is daly bound to regularise the services of the Petitionor as he has acquired the valuable right enshrined in the Constitution of India . In the year 1958, the Respondent/Bank has issued as circular to the effect than under no circumstances, wait listed persons like the Petitionerbe engaged even in menial category, thus , the Respondent/Bank imposed total han for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberarely delayed in filling up the vacancies by the wail listert workmen with ulterior motive. The Respondent /Bank has been arbitrarily filling up the vacancies with the persons other than wait sted workmen according to their whims and fancies . Hence, the Petitioner prays that an award may be passed in his favour .

6.Again , the Pentiuner filed a rejoinkler to the Counter Statement of the Respondent , wherein it is stated thar all the senlevents spade by the hank with the State Bank of India Staff ledetation were under section 18( 1 ) of the Act and not under sertion 1843 ) of the Act . As per recruitment neles of the Respondent/Bank. recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Kespondent/Bank . Even in the Writ Petitionbefore the High Couer in W.P.No.7872 of 1991 , the Petitioner questioned the seulemen dated 27-10-88 and 9-1-91. Itis false to allege that the settlements are contrary to the rights ofthe Peritioner. Hence , the Petitioner prays that an award may be passed in his favour.

7. In these circumstances . the points for my

consideration are :

"Whether the demand of the Petitioner in Waia

List No. 659 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as remporary messenger is justi het?

(u) To what relief the Petitioner is entitled? "

Point No. 1:-

9. On behalf of the Petitioner, it is contended that these Pelitouners were recruited as tеmроrаrу employees intheRespondent/Bank unila the guidelines and circulars issued by the Respondent Bank frurn time to time and forther, the same guidelines carry the procedure for regularisation of service of the temporary empinyces a imy settlement in this regard is reditmilant and in any case. ise Thetitioner is not bound by scrutement under section 18( 11 entered ime between the alleged Federation and the RespondentManagement . They further contended that Though the Respondent/Bank has stated that the Petitioner has not worked for nikire than 240 days in a continuous period of 12 calendar molts and was oot in continuous service on 17-11 1987 , Therefore, they have no valisi and enkrueable right for appointment , in the wake of SIT instructions and circulars / guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exceeding 200 days. hence the question of Petitioner working for 240 days does no1 arise ar all l'urther , they have invoked the relevant provisions ofChapter VA of the I.D.Act and it is preposterous ro cremend than the Petitioner bas no valed and enforceable right for appointment as Sections 2.5G and 25 are very much applicable to the Petitioners who are retrenched messengers and are eligible to he reinstated . Iearned representative for the Petitioner contended that in 1996 TAB & IC2248 CENTRAL BANK OF INDIA VS. S. SATYAMANDOTTIERS the Supreme Court has beid that Chapter V - A of the B. In this kasec , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners [ भाग - खण्ड 3 (ii) ]

भारत का राजपत्र अगस्त 4, 2007/बाषण 13, 1929

4973 I.D.Act providing for retrenchument is not enacted only for the benefit ofthe workmen to whom Section 25F applies burt for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retreached workroen . Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further comended that on behalf of the Petitioner that Ex W2 . Wwa and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Responden /Bank issued from rime to time in connection with the implementation of the settlements on absorption and which are statutory in character. Fumber , a combined study of Ex.Ml and the averiments ofMWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning licking his future with the settlements . Further, Clause ] of Ex . MI deals with categorization of retrenched temporary employees into 'A, B and C" , but this categorization of A, B& C' is quite opposed to the doctrine of ' last pune-first gu' or ' first come last go and therefore, the categorization in Clarise 1 is illegal . Clause 1 (a ) of Lix.MI provides an opportunity to persons who were engaged on casual busis and allowed to work in leavedasual vacancies of messengers , farashes , cash coolies , water boys , sweepers ete. for absorption along with the other eligible categories of temporary employees is not valid . Further , cogaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Lix.W8. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per hank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by The Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more herselficial treatment in the matter ofamiving al qualifying service for interview and selection . But . temporary employees have not been informed about this smendment which includes casuals affecting their interest und chance. Further , as per instructions in Ex.W2 four types of waiting lists have to be prepared . By the Respondent Bank has alleged to have prepared only one wait list for cach module as per Ex.M 10 in this case. Those candidates. tunder Ex.MIU were found suitable for appointment as niessengers and sweepers . Even MW ! is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according 10 MWI wait list under Ex.M10 was prepared on 2-5-92but there is no pleading in the Counter Statement with regard In this wait list . Further the Hon'ble High Court has held in

its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, in which it is stated that " it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily, wager in Class IV category who were prúd wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlerment and 1988 settlement since they formed two distinct and separare classes and they cannot treat one class and their action undoubtedly amounts to violation of Anicle 14 of Constitution of India . Further , the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of [ W ] wait list under ExM10 comparises ofboth messengerial and non- messengerial candidates . While the temporary employees were appointed afier chuc process ofselection and were paid wages on the basis of of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories.But , Ex .M3 provides for the same Dornns to the casuals as in the case of temporary comployees in the matter ofabsorption . Therefore , it is violative of Article 14 & 16 of Constitution of India. Therefore, the Petitioner contended that preparation of Ex.M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular. Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding proјсстей vacancies for the period from 1987 to 1994. Furthermore , no wait list was released published even alber' the Court order in WMP No. 11932/91 in W.P.No.7872/91 directing the Responden /Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore , wail list under Ex.MIU does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From اله these things, it is clear that Ex . M 10 has been prepstured in violation of instructions and ceased tohave the credibility attached to the wait list . Above all , Fx .M1 was not produced al the time of conciliation proceedings beld during the year 1997-98 held at Chennai and Madurai and only during the ycar 2003 theRespondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appoiosment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees, the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause2 (00 ) of the LD . Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though 4974

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13 , 1929

[PART 11-SEL . 3 ( 11 ) ) J

as enshrined under Section 25B and 25F of the Industrial Dispues Act, berefore, their retenchment from Service is illegal and against the mandatory provisions of Section25 und therefore , they are deemed to be in continuous service of the Respondent /Bank and they are entitled to the benefits under the provisions of 1.D. Act. It is further contended ton behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since theRespondent/Rank luas nut taken into consideration and not included the Sundays and paid holidays as days on which thePeritioners have actually worked and hence, they bave also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 1 IIJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that the expression 'actually worked under the employer ' cannor mean that those days only when the work nien wurked with hammer, sickle or pen but must necessarily comprehend all those days durmag which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by conspulsion of statute, standing orders etc. It is further , argued that call leters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have subiniated their application for absorption as per the bank's circular and therefore, their retrenchanent is illegal. In all these cases , the Petitioners were in employment as sub staff in carly 1980s but were denied further engagem Un account of settlements/lapsing of wait lists and nut of these Petitioners sorme of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of40 to 50 years and for no fauh of theirs , they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

the Petitioxter has performed the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulingsreported in 1985 4 SCC 201 HLD. SINGH VS. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that to employ workroen as " hadlies casuals or temporaries and to continue them as such for many years with the objeer of depriving them of the status and privileges of permanent workmen is illegal . " Learne representative further contended that Lix M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Lix . MIU which has been drawn up is contraryto law and also bad in law. Thus, the Respondem/ Bank has not acted in accordance with the low and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2( e) of Ex .M4 states that candidates found suitable for permanent appointoent willbe offered appointment against existing/ future vacnicy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he willbe deemed 10 hiuve refused in and the name sball stand deleted from the respectives panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document show how he has arrived at the seniority and till date, it is a mystery is to who that senior was and there is nu documentary evidence in support of the avermieru and also for the avetment of MWI . Therefore , the termination ofthe Petitioner when was in regular service of the Respoльмени / Bank is arbitrary, matafirle and illegal and the Respondent/ Bank has not acted in accordance with the terms of settiermention absorption of temporary employees . Though theRespondent/Bank has produced Ex . M6 which alleged sobe a copy of minutes of conciliation proceedings dated 9-6-75 here Regional Labour Commissioner ( Central), Hyderabad , it is neither a 18 (3 ) settlement nor 12 ( 3 ) settlementas claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Fx. M6 . Though the Respondent/Bank produced EA. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.PNo.7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Resporate Management bas examined two witnesses, the deposition of managemem witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked asEx. M140 M5. Above all , though the Respondent/Rank bas referned to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and bence evidence ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240

days and more in a continuous period of 12 calendar months

10. But . as against this, the learned senior counsel for the Respondent/Bank contended that the reference madeby the Goverrument itself is not maintainable in view ofthe facts and circumstances of the case . The Petition in this case and the Petitioners in the connected disputes were out in continuous service . Hence , the question of regular appointmentabsorption does not arise at all and their engagement was nul authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18 ( 3 ) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive, Further , they have conuzaled the material facts that the Petitioner was wait listed as per length ofhis engagement and could not be absorbed as he was positioned dowo in the seniority . The Respondent Bank was engaging testiporary comployees due to business 4975 भाग खण्ड 3ⅲ) ]

भारत का शुन्मपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

in the terms of the seulement, it must be binding on the contesting workmen also. " He further relied on the rulings reported inAIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "sentlement is arrived at by the free will of the parties and is apointer to the being good will between them . When there is a dispute that the settlement is not bonafide in nature or that it has been arrived at on account of fraud. misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter ofyet another industrial dispute which an appropriateGovt. may refer for adjudication after examining the allegations as there is an underlying assuroption that the settlemen reached with the help of the conciliation officer must be fuir and reasonable." Helying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the seulement, since the federation in which the Petitioner is also noe among them, they have entered into settlement with the bank and therefore, it is binding on the Peritioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the sarme.

11. learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent Bank and consequential appointment thereupon as temporary messenger is justified ?" The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt. is not valid . Luther , in this case, the Court has to see whether the restoration of wait list can he made as contended by the Petitioner and not reinstatement as allegedby the Petitioner in the Claim Statemeal .

exigency for the performance of duties as messenger. Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegating that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent Bank and the Federation were bonufide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. l'urthermore , the said settlements were not questioned by aty union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reponert in 1991 I LJ 323 ASSOCIATED GLASS INDUSTRIES LTD . VS. INDUSTRIAL TRIBUNAL A.P. AND OTHERS whereid under Section 12 (3 ) the uosun entered into a settlement with the management sertling the claim of ] ] workmen and the workraen resigned from the job und receivedterminal benefits , but the workomen reived plea before the Tribunal that they did not resigo vrhunsarily. But the Andhra Pradesh High Court has hekl that" in the absence of plea that the settlement reached an ארו course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen ." Icarned counsel for the Respondent Tither relied on the rulings reported in 1997 111 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORTCORPORATION AND OTHERS wherein the DevasionBench of the Rombay High Court has held that "herefore a settlespeam arrived at in the course of the citation proceedings with a recognised majority union ll be binding on all workmen of the establishment , even 10se who belong to the minority union which had objected the same. To that extent it departs from the retinary law or annicacts, the object obviously is to uphold the sanctity ef settlements reached with the actave assistance of the conciliation officer and to discourage an individual employce ni a minority union from scuttling the settleroxol ." 1:further held that " there may be exceptional cases, where there maybe allegations of mala fides , fraud or even Juption or other inducements . But , in the absence inf such ailegations, a settlement in the course of collective bargaining is entitled to duc weight and consideration." I expned counsel for the Respondent further relied on the ralings reported in 1997 I LLJ 308 K.C.P. LID . Vs. PRESIDING OFFICER AND OTHERS wherein the Supeсате Court has beld that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the 1.0 . Acid ( Fox arrived at in the course of conciliacion proceedings under Sec.ion 18(3 ). A settlement of the first category has limited application and binds merely parties to it and scalement of the second category made with a reugnised majority union has extended application as ir will be hinding ::: workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing, unreasonable or unfair

12. But as against this on behalf of the Petitioner it is comended that mere wording of reference is not decisive in the router of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY. KOLLAM JILLA HOTEL AND SHOPWORKERS LINION VS , INDUSTRIAL TRIBUNAL , KOLLAM wherein the KeralaHigh Court has beld that "mere wurding ofreference is nou decisive in the matter of lenability of a reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference; subjecting the poor workman to hardship involved in moving the machinery again. " 11 further held that the Tribunal should look into the pleading and find out the exact usture of pleading of thePetitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits. " Further, he 3218 GI07-21 [PART II--SUL THE GAZETTE OF INDIA : AUGUST 4, 2000SRAVANA 12. 1929

49:6

urgued that the Tribunal has got power to go into the questa in whether the Periticismer is to be reinstated in service ar now for which ine relied on the rulings reported in 1998 LABIC 1064 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS. wherein the Madhya Pradesh High Court has held that "the Tribunali ungu behind the terms of reference , but that does nou mean that it cannot look into the pleadings of parties." He alan relied on the rulings reported in 1998 LAB IC 1507 Α. ΣΑΜΒΑΝTHAN VS. PRESIDING OFFICER , LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a techoscal manner a pedantis: manner , but should consider the order ofreference in a fair and reasonable manner ." He also argued that in lixpress Newspapers P. Ltd. case reported in AIR 1993 SG 569 the Supreme Court has beld that "the Tauhunal has jurisdiction to consider all incidental matters aiso and the order of reference should not be construed in le manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, ir shuulp! consider the order of reference in a fair and reasonable manner , though the order of reference is nut happily framed nor was it framed to the high expectation of The Labour Court . " Relying on all these decisions. the representative for the Petitioner argued that though in the refere . I is nul mentional that whether the recrenchmem is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent: Bank arxi therefore, this Tribunal can look mito the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged hy him. Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribunal is entitled tir go into the question whether the relief prayed for by the Petitioner can be given to him or not? But. I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the ellemeal .

select list on reduction in number of vacancies was make insiew of the impending absorption of steam surplus stafi and a policy decision has been taken 10 reduce the number of vacancies and consequently , a certain number of botIOM persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits Eri which , the Supreme Court has held that in such circumstances , denial of appointments the persutis rentoved from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 19976SCC584 SYNDICATE BANK & ORS VS. SHANKAR PALT . AND OTHERS wherein the Supreme Court has held 1ltal by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year waly and thatsion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that ir was a yearly panel expiring on 6-2-98 , we are ofthe opinion that the Respondeans did not get any right because of inclusion of their names in the said panel for permanem absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore, the learnerd Single Judge and the Division. Bench , when it ferst decided the appeal were right in dismissing the Writ Petition and the appeai respectively." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS UNION OF INTMA wherein the Supreme Court has held that " candidates included in merit list has no judefeasible right tu appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the pain of theRespondentBank in preparing the wait list, it camot be said that preparation of wait list was made with mala fiute motive. Under such circumstances , after the expiry of the dare namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot рrау fоr reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA ANDORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that "now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year should he regulierised , we find it difficult to sustain it. The direction his been given without reference to the existence of a vacancy . The direction in effect means that every ad - hoc/ temporary employce who has been continued for one year should he regularised even though ( a ) no vacancy is available for him which means creation of a vacancy; (b ) he was bet sponsored by Employment Exchange , nor was he appointed in pursuance of a notification calling for applications which means he had entered by a buck door (c) he was not eligible and qualified for the past at the time of his appointment; ( d ) his record of service since his appointment is not satisfactory . These are the addisiona problems indicated by us in para 12 which would arise from 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and be relied on the rulings. reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V. VUEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of oppointment in Govt . service in an existing or a future vacancy. " In that case, prising of 4977 भारत का राजपत्र मगस्त 4. 2007 / ण 13 , 1929

[ भाग -खण्ड ( ii) ]

the1.D. Acx retrenchroent procedure following principle of "last come - first go ' is not mandatory but only directory . on sufficient grounds shown, the employer is permittedto depart from the said principle retrenching seniors and retaining juniors . Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service, be has not established with any evidence that his juniors were made permanent by the Respondenu Bank. Any how, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances, the prayer for reinstatement in the services of Respondent/ Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissex! with DOS15.

15. Tearned Senior Advocate further argued that even in recent decision reported in 200648CC 1 SECRETARY. STATE OF KARNATAKA VS. UMA DEVL the Supreme Court has held that merely because a temporary employee or a casual wage worker is continued for a time beyond th term of his appointment , he would not be entitled be absorbed in regular service or made permanent murely Gal the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is now open to the Courtso prevent regular recruitment at the instance of temporary comployees whose period of employment has come to an end or of adhoc employees who by the very nature of their appointmem, do not acquire any right . " Further , it bas also held that it is not as if, the person who sccepts an engagement either temporary or casual in nature is not aware of his employment . lie accepts the comployment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employmeal so as 10 eke out his livelihood and accepts whatever be gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has termporarily or casually got employed shouldbe directed to be continuod permanently.By doing so, it will be creating another mode of public appointment which is not permissible. " Further , the Supreme Court while laying down the law, bas clearly heldthat "imless the appointment is in terms ofthe relevan rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuare if the original appointment was not made by following a due process of selection as envisaged by relevant rules . Winther , in CDJ 2006 SC 443 NATIONAL FERTILIZERSLTD. ANDOTHERS VS. SOMIVIR SINGH, wherein the Supreme Court has held that "regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules, the same being a nullity , the question of giving of such Napkelorders. None of the decisions relied upon by the High Court justify sach wholesale , unconditional orders . Moreover , from the meте continuation of an ad -hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may bejustified only when such continuance extends to several years . Further, there can be no rule of humbin such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it camot be held that in cach and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations .The relief must be moukled in cach case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one . From this, the impugned directions must be held to be totally untccable and msustainable . Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SEC | ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . "So far as the question of confirmation ofthese employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc hasis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore, remained a nullity.""Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and finey have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMARVIDYARTHI & ORS VS. STATE OFBIHARAND ORS , wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances, their disengagement from service camot be construed to be a retrenchment under the LD. Act The concept of retrene bedre, camot be stretchedto such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts, their disengagement is not arbitrary. " He further relied on the rulings reponed in 1994 3 LLJ (Supp) 754 wherein the Rajasthan High Court has held that "Under Section 250 of 4978

PART 11 SEC. 3 ] THE GAZETTE OF INDIA: AUGUST 4 , 2007/ SRAVANA 13. 1924

confirmation of an employee upon the expiry of purported periudofprobation would not arise." Futher , in CDJ 2006 SC 395 MUNICIPAL COUNCIL. SUJANPUR VS. SURINDER KUMAR . the Supreme Court hus held that it disputed that the appointment of the Respondent was not in sanctioned post . Being a' State ' within the meaning of Article 12 of the Constitution of India. the Appellant for the purpose of recruiting its employees was bound to follow the recruianent rules . Any secraiement made in violation of such rules us also in violation of sesstitutinna : scheme en lirined under Articles 14 and If of the Constitution of India would be void in law. " Further . in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDHISTROS DEVELOPMENT CORPORATION VS.S.C. PANDEY wherein the Supreme Court has held that only because an unployer had worked for more than 40 days of service by that itself would que conter any legal -ght upon him in the regularised in service . " The Supreme Court aise held that the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , and outsourcing is evidene in view of settled legal position , as noviced hereinbefore." Respondent/Bank has got sanctunned posts for temporгагу employees to be absorbed. I find the Pegitinners cannot claim for reinstatement ni regolarisation in services of the Trespondent Bank .

14. Pather , the representative for the Petitioner contended that in a similar cases, this I rabunal had ordered Tur reinstatement with back wages and these disputes are siso similar an namure and hence , the Petitioners are entitled fru the same selief.

19.But. I find since the Supreme Court has held thai temporary employees are not intitled in claims any rights for regularisation , merely because they have completed 240 days ofenntinuous service in a period vi 12 calenduz months and the Supreme Court has also held that each case must he considereal on its own meri : and the changes brought wut by the subsequent decisions of the Supreme Court penbably having regard to the changes in the policy disnstuns ofthe God in the wake of pres siling marker zennomy. globalisarion , privatisanor and nutsourcing is eugent . ] find the Peurioner is not entitled to clim regularisation or reinstatement in the Respondent Bank as alleged hy him . Thepelove. I frul mis point against the Petitioner

Point No. 2

The nex: point to be decided in is cases10 resef the Petioner

20. Ir view of an etong lenings that the Pratoner is a tecnporary employersoul be isnor catirle ! tr he absorbed in reguer service or made permanent merely en the streagah of uch lidance of work | Inde Jestionar is not enrialed in any relier as claimed by him . No 21. Thus lacefererer sanswered secordingly .

Dictated to the P. iranscribed and typed by מול corrected and pronounced by me in open court on this day the 31st January. 200 ..

KJAYARAMAN. Presiding Office:

WTresses Examined:

For the Petitioner

16. Relying on all these decisions, learned counsel orthe Respondent contended that since the Penhmer has not been appointed for regular post nor has he beca int regulat vacancy us sanctioned post , the ritimers sutentitled to claim regullarisation of his ser: ive . Further, when they have nor been questioned the sive settlerr.ess entered into between the RespondentBank 2 ::.. Ferle: ation ariul since they have int questioned ilse war List preparerl by the Respondenr/Bank, they are not enteled x dispute the same and they are estopped from dungso Further . theer prayer before the labour autburs was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list Linder surl : carcumblances , after expiry of the period mentioned anthe sectiepients which were subsequently amended by seillements . the Petitioners cannot now question ether rise preparation of wait list of mumber alloned when . Lixier ich circumstances, it cannot he questioned by the exiticac

17. teid much force in the contention of the leamed counsel for the Respondent . Though in the Claim Stat meas . The Petitioners have made so many allegarins with regard in preparation of wait list and allen sertlemeurs entered into between the Respondent/Bank and Federation . at the life is reference , they have not questioned the senlemer nor the number allotted to each individual in the wait list Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was 20 :bona fide in narure or it has been arrived at on account ul mala fide įmisrepresentation , fraud or even corruption or ether inducements . Linder such circumstances, 1 find the Datitinzers cannot now question the settlements al this stage and since they are only temporary employces and since it is not shown before this Tribunal that the

WW : Sen K. Raju

For the Respondent A1W Sr. Man : appan MW2Sri C. Ramalingam Documems Marked:-

Ex.No. Dure Description

1-06-88 Хетол copy of the paper pubication in Caty Thanthi based on Ex . Mi.

W2 30-0488 Xerox copy of the administratieve guidelines issued by Respondent/Bank for implementator of Ex . M1 24491 Xerus copy at the circular of Respondent/Baako ali Branches regording absorption of deity wagers in Messenger vacancies .

4979 [ भार खण्ड (i) ]

भारत का सबभत्र अगस्त 4, 2007 /श्रवण 13 , 1929

01-05-91

W23 26-413-97 Xerox copy of letter advising selection ofpart time Menial-G.Pandi Хегоx copy of the advertisement in The Hindu on daily Wagers based on Ex. W4.

20-06-91

W24 31-03-97 Xerox copy of the appointment orderto SriG.Pandi

Хетол copy of the advertiserment in The Hindu extending period of qualifying service to daily wagers

W25 lieb 2005

W6 15-03-97

Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 ofMaduraiCircle Xerox copy of the circular letter of Zonal Office, Chennai About filling up to vacancies of messenger posts.

W26 13-02-95

25-03-97

Xerox copy of the Madurai Module Circular letter shout Engaging temporary employees from the panel of wast list

W27 09-11-92

Хегox copy of the circular of Respondent /Bank to all Branches regarding indentification of massenger vacancies and filling them before 31-3-97.

Xerox copy of the Head Office circular No.28 regarding Norms for sanction of messenger staff

W28 09-07-92 Xerox copy of the minutes of theBipartite meering

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to domassengerial work .

W29 09-07-92

30-11-84 Хегол copy of the service certificate issuedby Perambar Branch .

WINNI

Xerox copy of the settlementbetween Respondent/Bank and All India Staff Rank of India Staff Federation for implementation of norms-creation of part time general attendenes Xerox copy of the service certificate issued by Elephant Gate Rranch.

02-12-95

W30 07-02-06

Хегоx copy of the service certificate issued by Thousand Lights Branch.

W12 19-01-96

Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general arendams

Хетол copy of the service certificate issuedby Washermenpet Branch .

W31 31-12-85

W13 13-03-96 Xerox copy of the service certificate issuedby Elephant GateBranch.

W14 13-03-96

Хатох сорy of the local Head Office circular about Appointment of Temporary employees in subordinate cadre

Xerox copy of the service certificate issued by Elephant Gate Branch .

FortheRespondent/Management:

WIS 28-05-97

Fx . No. Date

Kerox copy of the service certificate issued by Thousandlights Branch .

Description

W16

21-06-97

17-11-87 Xemx copy of the settlement.

Xerox copy of the service certificate issued by Mint Terminus Branch.

M2 16-07-88 Хегоx copy of the settlemeot WIN

M3 27-10-88 Хероx copy of the settlement .

M4 09-01-91 Xerox copy of the settlement .

Xerox copy of the administrative guidelines in Reference book on staff Thalters issued by Respondent/Baok regarding recruitment to subordinate care& service conditions.

MS 30-07-96 Xerox copy of the sardement .

WIS NI

09-06-95 Xerus cupy of the minutes of conciliation proceedings.

Хеток copy of the Reference book on Staff matters Vol . Ill consolidated uplo 31-12-95

MT 28-05-91

W:9 06-24-97

Xerox copy of the order in W.P. No.7872-91

15-05-98

Xerox copy ofthe call letter from Madurai zonat office for interview of messenger post-V . Muralikannan

Хегox copy of the order in O. P. No.2787/97 ofHigh Court ofOrissa W200 06-03-97

MY 10-07-99 Хегох copy ofthe onder ofSupremeCount in STP No. 3082/99.

Xerox copy ofthe call letter from Madusai zonal office for interview of messenger post -K. Subburaj

MIO NE

21 06-03-97

Xeгox copy of the wait list of Chennai Module.

Xerox copy of the call letterfrom Madurai zonal office For interview of messenger post -I.Velmurugan

M1125-10-99

W22 17-03-97

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99.

Xerox copy of the service particulars- J. Velmurugan 4980

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13.1924

PAKI SEC. 3(ii) ] नई दिल्ली, 19 जुलाई , 2007

toboth parties. Both sides entered appearance and filed their claim scaternent and Counter Statement respectively. After the constitution of this CGIT Com Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has oumbered it as I.D. No. 239/2004.

2. The Schedule mentioned in that order is us follows:

का.आ. 2182-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 143 की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण चेत्रई के पंचाट ( संदर्भ संख्या 239/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था

(सं. एल 12012/468/98 - आई आर. (बी -1 ) 」 अजय कुमार , डेस्क अधिकारी

New Delhi , the 19th July, 2007

"Whether the demand of the workmao Shri P.Thomas , wait list No. 407 for resinting the wait list of temporary messengers in the establishment of StateBank of Indu und consequential appointment thereupon as temporary messenger is justified? If 50. 10 what relief the said workınan is entitled?"

3. The allegations of the Petitioner in the Claim Statement are briefly as follows:-

$.0. 2182.- in pursuance of Section 17 of the Industrial Disputes Act. 1947 ( 14 of 1947 ), the Central Government hereby publishes the award (Ref. No 2397 21041 of the C'eqtral Government Industrial Tribunal - cum- Labour Court , Chenoai as shown in the Annexure in the Industrial Dispure between the management of State Bank et India and their workmen , received by the Central Govertirnent on 19-7-2017.

[No. 1-12012/468/98 IK ( BI ) ] ΑΓΑΥ ΚUMAR. Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL, TRIBUNAL CUM- LABOUR COURT.

(HENNA)

Wednesday, the 31st January, 2007

PRESENT

K.JAYARAMAN, Presiding Officer

Industrial DisputeNo.239/2004

(Principal Labour Court CGID No. 166/99)

(Inthe matter of the dispute tor adjudication under clause( d) of sud secrion ( 1 ) and sub - section 2 (A ) of Section 10 of the Industrial Disputes Act 1947 ( 14 of 1947 ), hetween the Management of State Bank of India and their workness)

BETWEEN

Sti P. Thomas

: I Party/Petitioner

AND

IlParty/ Management

The Assistant General Manager , State Bank ot India , 7. С. Съеплаі .

APPEARANCE

For the Petitioner

: Sri V.S. Ekamharam,

Authorised Representative

For the Management : M/ s . Veeramani , Advocates

AWARD

The Petitioner was sponsored by Employment Exchange for the post oil sub staff in Class IV cadre in State Rank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Mannady branch from 16-6-1980. The Peritioner was orally informed that his services were no more required. The non -employment of The Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent Bank , in addition to its counter . filed a copy of sertlement under section 18( 1 ) reached between management ofState Bank of India and All India Stare Bank of India Staff Federarion and the seulement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-36 were classified in the settlement was under consideration once again and they classified theworkmen under three categories namely A. B and C. Though the classification was unreasonable , the Respondent/Bank brought to the isotice of the Petizioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format rlirough Branch Manager of the Mannadi branch . He was called for an interview by a Committee appointed by Responden /Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 16 6 80, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Chindadripet branch , another advertisement by the Respondent Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner urally on 31-3-1997 that bis services are mol required any more and he need not attend the office from 1-4-1997. Hence, the Petitioner raised a dispute with regard ro his non employmenr . Since the conciliation ended in failure , the matter was referred to this Tribunal for 1. The Central Government Ministry of Labour.vide Order Nu L - 12012/46598-1R ( B -1) dated 12-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court . Chennai and the said Labour Court hus tuken the dispute on its file as COID No. 166/99 and issued notices [भाग II-खण्ड ( ii) ]

498 ]

भारत का राजपत्र अगास्त 4, 2007/ श्रवण 13 , 1929

adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt. to roconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-1997 mad to regularise him in service in due course. The Respondent/Bank took up ил unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to tise Respondept/Bank, it engaged the Petitioner only in temporary services after the seulement. The Petitioner was not aware of settlement by which bis services and number of days worked by him after inkerview do not therit consideration . The Patitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnani to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of Para522(4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circolar . The RespondentBank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing bion to work under assumed name or by both which amounts to unfair Labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

proceedings and crimutes were drawn under Section 18(3 ) of 1.D. Act. In lerns thereof , the Petitioner was considered for peomanent appointment as per bis eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidateNo. 407 in waitlist ofZonalOffice, Chennai . So far 357 wait listed temроrаrу candidates, out of744 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . ThePetitioner was engaged only in leave vacancies as and when it arose. When the Petitioner having submined m sclection process in terms of settlements drawn as per retrenchiment provisions referred to shove , cannot turn around and claíon appointment . Such of those temрогагу employees who were appointed were engaged for more number of days and hence, they were appointed . Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temрогагу employees who were engaged for 240 days were to be considered and under category (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or iminimum 70 days aggregate temporary service in any continuous block of36 calendar months were in he considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off dair was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994. The Petitioner has no valid and enforceable right for appointment . The Respondent bad implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid tempoчагу employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid seulements , out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 407 he was not appointed .The said settlements were bonafide which were the only workable solution and is hinding on the Petitioner. The Pelitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment ofPermanent Status to Workmen ) Acı , 1981 does not apply to Respondent Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of remporary enaployees and vacancies for 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maimaidable . The Petitioner was not in continuusas service . Hence , the question ofregular appointment / absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18 ( 1 ) and 18 (3 ) of LD . Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and madewith ulterior motive .The Petitioner conccaled the material facts that be was wait listed as per his length of engagementand could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorptics and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987, 16-7-1988,7-10-1988.9-1-1991 and 30-7-96.The said sertlerments became subject matter of conciliation 1995-96 has to be filled up against the wait list drawn for 4912

THE GAZETTE OF INDIA AUGUST 4. 2007 / SRAVANA 13,1929

appointment of daily wages / casual labour. Further. Tor circle of Chennai wait list of daily wages was not finalized and bence not published and there is only one wait list for rbe appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanepl absorption. Hence. for all these reasons , the Responderi prays to dismiss the claim with costs .

5. In the additional claim statement the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical exaro: nations . the Petitioner has fulfilled the criteria ser o いし by the Respondent/ Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank conti ก กะเจใ with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998. the Responden Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner the engaged even in menial category , thus , the Respondent Bank imposed total ban for his fucure employment . Even though there were sufficient number of vacancies in class IV category , the RespondenuBank deliberately delayed in filling up the vacancies by the wait lisreal wuskinen with ulterior motive . The Respondent Bank hasbeen arbitrarily filling up the vacancies with the persьоль other than wait listed workmen according to their whims and fancses . Hence , the Petitioner pray's that an award Thay be passed ir. his favour.

6. Again, the Peritinner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the sorrlemenig made by the bank with the State Bank of India Staff ederation were under Section 18 ( 1) ofthe Act and nox under Section 18 (3 ) of the Act . As per recruite rules of theRespondent/Bank , recruitment of class IV stafi in the Refpondent/Bank is in accordance with the instructions laid down under codified circulars of the Responden/Bank . Even in the Wrin Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the serlernent dated 27-10-88 and 9-1-91 . It is false to alloge that the settlernenes are contrary to the rights of the Petitioner. Hence, the Petitioner prays that an award may be passed in bis favour .

7.1d these circumstances . the points for צות consideration are :

(1) "Whether the demand of the Petitioner in Wait List No. 407 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?""

"To what relief the Peticioner is entitled ? " Point No. 1:

8. In this case, on behalf of the Petitioner it is comended that the Petitioner in this case and the Peririoners

PART I-SLC nul in the connected inxiustrial disputes have been sponsored by Employment Exchange and they having heen called for interview and having been selected and wait listed in tertis of the relevant guidelines / circulars of the Respondent/Bank in permanent vacancies on subordinate cadre on tempurary basis After engaging them intermittently for some years , The Peritioner in thisthis case and other Petitioners in the connected disputes were terminated without any полісе . Since theRespondent / Bank lerminated several temригагу employees in the year 1985. the State Bank Employees Linion had filed a Wait Petition before the Suprente Cont to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Coum at the time of final hearing of the Writ Petition. This seulement has become an exhibit of the Respondent/Bank and has been marked as F.x. M1 . The Peritinner in this case and 12 Petitioners in the connected cases attacked this settleme as in is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Responden /Bank without any intituation от пише denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labom authorities and they questioned the revencliment as unjust and illegal and they further prayed for reinstatement with back wages and other arrendant benefits

9. On behalf of the Teriktioner , it is contended that these Petitioners were recruited as termporary employees in the RespondentBank under the guidelines and circulars issued by the Respondent/Rank from time to time and further , the same guidelines carry the procedure for regularisation of service of the tenykırary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by scalement under Section 1941 ) entered into between the alleged Federation and the Respondent/ Management . They further contended that thongle the keywinden / Bank has staled that the Petitioner has not worked for more than 240 days in a continunus period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have in valid and enturyeahle right or appointment , in the wake of street instructions and circulars / guidelines issued by the Respondent/Bank to the effect that lemporary employees at branches /offices are not allowed to be in service excreding 200 days , hence the question of Petitioner working for 240 days does ont arise at all . Further . They bave invoked the relevant provisions of Chapter VA of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 2.5G and 2,5H are very much applicable to the Petitxoners who we retrenched messengers and are eligible to be reinstated . Learned representative for the Tetitioner courended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Count has held that Chapter V -Aol the I.D. Act poviding for retrenchiment is not enacted only for the benefit of the workrien to whom Section 25F applies 4983

भारत की रामपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[ भागः ॥ खण्ड 3ⅱ)

as perBipartite Settlement while the 1988 settlement deals with daily wager in Class IV category who were paid wages daily un rautual agreement basis. In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 seriemeru and 1988 selllement since they formed two distinct and separate classes and they cannot real one class and their action undoubtedly amounts to violation of Anicle 14 of Constitution of India Further, the averment ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality contumitted or perpetrated hy theResponderit/Bank by combing equals with unequats . It is fumper contended on behalf of the Petitioner that as per deposition of MW ] wait list under Ex M10 comparises of basb roessengerial and non- messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industry -wise settlement, it is not so in the case of casuals. Therefore,both belongs to wo different and distinct categories. But, Ex.13 provides for the same nontos to the casutals as in the case of temporary employees in the matter Fabsorption . Therefore, it is vlolajive ofArticle 14 & 16 of Constitution of India. Therefore , the linctitioner contended that preparation of Ex.M10 namely wait list is nΟΕ inconformity with the instructions of Ex.112 and non- preparation of separate panels amounts to violation of circular. Secondly , it has not been prepared as per Instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was teleased published even after the Court order in WMP No. 11932/91 in W.P.No. 7872/91 directing the Respondent Bank to release the list of successful candidates pursuant to the first advertisement publisbed in The Hindu dated 1-8-88. Furthermore, wait list undet Ex.MIO does not carry particulars about the candidates date of initial appriltment and the number of days put in by them on arrive at their respective seniority. Prom all these things , it is clear that Ex . M 10 bas been prepared in violation of instructions and ceased to have the credibility uttached to the wail list Above all , Ex. M 1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Cheonni and Madurai sod only during the year 2003 the Reapondeat/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . 11 is further contended on behalf of thePetitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy,Purther , even before or after the settlement on absorption of temporary employces , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( oo ) of the I.D. Act, 1947. Though the Petitioner's work in the Respondeat/Banik is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation itssuch is not valid and the provisions of Sastry Award are also violated. Further , the representative of the Petitivsu relied on the rulings reported in 1985-4 SCC 201 LD . SINGH but for all cases of retrenchiment. Therefore, the application of Section 25H cannot be restricted only to one category of retrenched workmeo . Therefore, the cudtention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointmeat is untenable.It is further commended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the Circular/sostructions of the Respondent/Bank issued from timeto time in connection with the implementatiut ofthe seulements on absorption and which are statutory in character. Further, a combined study of Ex.MI and the averments of MW1 and MW2 and their testimonies during the cruss-examination will clearly show how the batikhas given a raw deal to the Petitioner from the beginning linking his future with the seulements . Further , Clause I ofEx. Ml deals with categorization of retrenched temporary employees into A , B and C" , but this categorization of ' A. B & C" is quite opposed to the doctrine of ' last come first geo ' ni first come last go and therefore, the samegotizion in Clause I is illegal . Clause ) ( a ) of Ex.MI provides att opportunity to persons who were engaged on casual basis and aliowed to work in leave / casual vacancies of messengers, farashes , cash cooties , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengeriat work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex .W8 . Further , the appointment of daily wagebasis for regular messengtrial jobs elc . are strict'y probibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible culegories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank servive. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for Interview and selection . But, remporary employees have no1 heen informed about this amendment which includes casuals affecting their interess and chance . Further, as per instructions in Lix . W2 four types ofwaiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.MID in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers. Even MWI is unable to say as to when the wait list Ex M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-1187 , 27-10-88 and 91-4.1 which are marked as Ex MI , M3 and M4 respectively. But when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was oot included in the Madras circle since the High Court order is there,but he has not produced any document in support of the so called non- inclusion except his bald statement . Further, accordingto MWI wait list under Ex.MJO was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Lion'ble High Court has heid in its order dated 23-7-99 in W.P.No.7872 of 1991, which is markert as an exhibit , in which it is started that it is clear that the 1987 settlement was concerned with the remporary class IV employees who were paid scalewages

3218 GUC7-22 1981

THE GAZETTE OF INDIA : AUGUST 4 CFSRAVANA 3.929

PART SEC . 3 ( ii) ]

berdits under the provisions of D. Aut. It is further ze: t .nded on behalf of the Petitioner than thougil someuf 11: Penta ט ers on the connected T.TDs have not completed 240 days, since the RespondentBank has not taken ίτη consideration and not included the Sundays and paid Ličays as days or which the Petitiorers have actually workedand hence, they have a sa completed 240 days in a periodof 12 calenciar Imonths He also relied on the rulings repermed in 1985 11 LUSSY WORKMEN OF AMERICAN ENFRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL RANKING CORPORATION wheresi the Suprerne Court has held that the expression actually worked under the empinyer not mean that those day's only when the werken worked with hammer , sickle or pen bus must necessarily comprehend all those days during, which they were in the employment of the employer and for which he had been paid wapes athen under express or mplied cartraer of service ur by compulsion of sraqule, standing orders etc." further , argued that call letters produced by the Peritoret will clearly prove that the Respondemak has conducted the interview and seeled the temporary employees who have reportedin have submined their application for absorprion as per the bank's circular and therefore then retrenchment is illegal . In all these cases, the Fetitioners were in employment as subsraffin early 1980s but were denied further engagemen ст. account of settir : nents /lapsing of wair lists and out of these Petroners sonar them have ceripleted 240 day . and more period of 12 calendar worths and they are in age group of 10 to 50 years and fur no fault of theirs. they find theniselves Harded in life midstream They have alse not gainfully cripioyed . In such rcumstances . this Trimonal has to pass an award in their WS RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to enyplay workmen as Deadlies cards or remporaries and to continue them arefor many years with the object of depriving them of the stoen: tnd privileges of permanent workmen is illega " 14red representative further contended thar ExM10 wal: list has not been prepared in accordance with principle ofiseniority in the legal sense . since the selected has didate ich inagest service should have priority user those who joined the service later and therefore, the weir lis: under Fx M10 which has been draws up is contrary law and also bad in law . Thus , the Respondenz/Bank nol acted inraccordance with the law and the spirit of the seulement , :: ! in utter vio'stion and inn breach of it. Th Cause 2teja : Ex . Mi4 stares that candidates found sulalle for permanst appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case . a candidate fails to accept the other of appointment or posting within the prescribed perind , he will be deaded to have refused it and the name shall stand deleres front. the respective panel and he shall have further claim for being considered for perm appointnaent in the bank . The Responden/Bank has rot produced any document to show how he has arrived al the seniority and till date , it is a mystery as to who that senge was wnd there is in documentary evidence in supp of the avertient and alse for the averment of MWL. Therefore , the term.nation of the Petitioner who was in regular servise of the Respondenr/Hank is arbitrary , mala file and leigul and the Resporiglen /Bank has not scried in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent Bank has produced Ex . M6 which alleged to be a copy of minutesof concihation proceedings dated 9-6-75 before Regi LHOUT Commissione (Central ) , Hyderabad , it is neither a 1813 ) settlement aer 12 ( 3 ) settlement as claisned by the Respundent/Bank which says only with regard to modification of Ex . MI to Me made in terms of Ex . Mh Though the Respondent/Baak produced Ex . M7 and 111 interim orders passeil by Magh Court of Madras in WP No.11932/ Lin W.P.No. 7872/91 ceased to have any zelevance when the main writ has been disposed of in the can 1999 b3 therefore , they do or have my bearing in the case of the Petitioner. Tunteer, though the Responde Management has examined two witnesses , the deposition of managerient witnesses during the Joss exami had besume apparent that they have no personal knowledge. about the settlensers which are marked as Fx. M1 M5 . Above all , though the Respondent Bank bas referred to Soluntary retizement scheme. In the Respondent/Bank it was impleme med only in the year 2001 and it constitutes post referente period and hence evidence of Respondeur/ Bank has application to the Petitioner's wine . The Petitioners have completed the service ot 240 days and הסס:מומזמרי ous period of 12 calendar months as Crisanined under section 25B and 25F of the Industrial 10sputesAct . therefore, their retrenchment trom service is iliepai and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continticus service the Respondenc/Bank and they are entitled 10 the

iu But . as aga ostos. The learned senior consci for the RespondeatBank contended that the reference nade by the Government itsellis not maintainable in view of the facts and concumstances of the case . The Pesiracet ir. this case and the Petitioners in the connected disputes were not in continuous service. Hence , the question of regulas appointment/ absorption dries nut arise at all and their engagement was cur authorized . Further . the Petitioners are estopped Iron making claim as they had accepted the settlements drawn Under the provisions of Section 180!; and 18121 of the ID Acs , in lieu of the provisions of law and in : plemented by the Respondenr/ Bank and the claim of the Peririoners are not bonatide and are made with alreric motive . Father , they have concealed the material facts that the Personer was wait listed as per length of his engagement and could not be absorbed as be was positioned down in the seriority The Respondent Bank was engaging temporary espioyees due to business exigency for the perfinemarce of duties as messenger. Further , the allegation that he was sponsored by Triployment Exchange in morrect and the aliegazion har he worked as termporary messenger is als incurrect . they were engaged agains leave vacancies The settlemear enrered into by the Respundea Bank and the federation were honafide which were the naly workable sclatier and i 4985

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[ भाग -खण्ड 3 (ii) ]

settlemens is net bona fide in catare or that it has bere arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other indacements, is could be subject matter ofyet another industrial dispate which an appropriate Gow , mas refer for adjudication after examining the allegations as there is an underlying assumption that the settlement renerd with the help of the conciliation officer must be far and reasonable. Relying on all these decisions , leaned counsel for the Respondent contended that though it is alleged that they are not parties in the settlement , sink he federation in which the Petitioner is also one among sen they have entered into settlement with the hanık and therefore, it is binding on the Petitioner . Further , ue argue that no waion et the bank bas questioned the settlemen and in such circumstances , it cannot be said thu it is no binding on them and he is estopped from dispurang the SONE.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected dispues is whether the demand of the worluman with wait list No. given for restoring the wait l'st of temporary messengers in the establish her of Respondent /Bank and consequential appointmen thereupon as temporary messenger is justified ? The ritime Stended that the retrenchment made by the RespondentBank is not valid und he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Governument is not valid. Further , in this case, the Court hus to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged bythe Petitioner in the Claim Statement .

12.But , as against this on behalf of the Petitioner il 18 contended that mere wording of reference is not decisive in the matter of lenability of a reference and be relied on die rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL.TRIBUNAL. KOLLAMwherem the Kerala High Court has beld that " mere wording of reference is not decisive in the inatter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible Irom the material before it, it has only on duty and that is to decide the points on merits and not to find out scine technical defects in the wording of reference, subjecting the poor workman to bardship involved in moving the machinery again . " It further held that "the Tribunal should look into the pleading and find out the еxасt nacure of pleading of the Petitioner to find out the exact nature oi dispute instead of refusing to answer the reference on meriss ." Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstalled in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPLK MILS . INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court hus bend that "the Tribunal cannot go befund the terms of reference but that does not mean that it cannot leak tam the is buding on the Petitioner. The Petitioner accepte sentlement and scourdingly he was wait listed and therefore, thePetiboner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Funkermore , the said settlements were not qucazioned by any union and the settlements were bank level settlements and operate throughout the country . Further, he relied on the rulings reported in 1991 J323 ASSOCIATED GLASS INDUSTRIES LTD . VS. INDUSTRIAL TRIBUNAL A P. AND OTHERS wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 werigthen and the workmoa resigned from the job and received terminal benefits , bun the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh Iligh Court has beld that "in the absence of plea that the setdement reached in the course of conciliation is vitiated by fraud, mis- representation or coercion , the settlement is binding on the workmen" Learned counsel for the Respondent further relied on the rulings reported in 1997 1LLL] 1189 ASIIOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that therefore a settlemem arrived at in the course of the conciliation proceedings with a recognised majurity uninn wal .he hrinding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts . the object obviously is to uphold the sanctity of seulements reached with the active assistance of the Corciliation officer and to discourage an individual empinyce or a minority unica frora scuttling the settlemeти." It further held that "There may be exceptional cases , where there maybe allegations of mala fides . Trawd ur even corruption or other inducements. But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled in due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.CP.LID. VS PRESIDING OFFICER AND OTHERS wherein the Supreme Court has hold that " reftiements are divided into twe categories namely fit those arrived ut outside she conciliation proceedings under section FB (1) of the 1.D. Act and ( i) shore arrived ar in the course ofconciliation proceedings under section 1843). A settlement of the first category has limited upplication and binds merely parties to it and xettlement of the second category made with a recognised majority union has extended application as it will be hinding on all workmen of the establishment. Even in case of the first category, if the settlemens was reacherd with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be biruding on the conseming workmen also." He funker relied on the ndings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. VI STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "sentement is arrived at by the free wil! of the parties and is a pointer to there being good will between them. When there is a dispure that the THE GAZETTE OF INDIA : AUGUST 4, 2007/SRAVANA 13 , 1929

[PART I SEC ) pieadingsofparties . " He also relied on the rullings reported 1998 LABIC 1507A SAMBANTHAN VI . PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has teen held -that " ia has been repeatedly held that the Labour Cour should not attempt to consider the order under referencein a technical manner or a pedantie manner, but should consider the order of reference in a fair and reasonicde manner " He also argned that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Sigereme Court has held that "The Tribunal has jurisdiction to consider all incidersal matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudicarion. The Labour Court is expersed to decide the real nature of dispures berween the parties and with that object in view , d consider the order of reference in a fair and re sonable muanner, though the order of reference is not happei'y mamed morwas it framed to the high expectation of the Labour Carri "Relving on all these decisions , the representative for the Petitioner argued that though in the reference. it is rol mentioned that whether the retrenchment is valid or rot, froin the pleadings it is clear that the Petitionershave. seen retrenched from the Respondent Bank sod therefore.. This Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitiomer is entitled tobe reanstated, in service as alleged by him and whether he is ceritled to the back wages as alleged by him. Therefore . the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any

13 1 find some force in the contention o : the eserve for the Petitioner . Therefore . I find this Tribias entitled to go into the question wheather the iei prayed for by the Peritioner can be giver to him or ถ ล: ? Bu find that the settlement was validly entered into between theRespo ident/Bank and Federation and since it is nas quetiane ; by any of the unions of the Responden Bank . Lind the Petitioner is not entitled to question the seatlemeng

14. Then the learned counsel for the Responden: tendedbar since the Petitioner mentioned that he has seen kent inthe wail list and the time of waitlist has been wausted now the Petitioner cannot question that he sinusuldbe constated in service and he relied on the rulings . reported in 1946 3 SCC 139 UNION OF INDIA AND OTHERS B.K.V.VUERSH wherein the Supreme Court has iceld that the only gaestion which fallsfor determinasiovi in this appeal is whether a candidate whose name дарешту 11. the select list on the basis of competitive examNGELON & avires a right of appointment in Goveerument service in an cxisting or a future vacancy. " In that case , prosog ofselect list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff andinpotky decision has been taken to reduce the number nevacancies and consequently , a certain mumber of botnom pessoas ware removed from the select list and the remaining selectees were given appointments according to their mparative efits . In which , the Supreme Court has لاسد that"in such circumstances, denial ofappointment to Tήσε

persons removed from the select just is not arbitrary and svcriminaton " Hejuuther relied on the rulings reported in 1997 SCC 584 SYNDICATE BANK & ORS. is SHANKAR PAIL AND OTHERS wherein the Supreme L'ourt has held that " by its letter doted 7-2-87 the bank informed the Resporiderus that the panel wat valid for one year only and that incilesion of their names in pre panel was rat in coafer on them any right to seek permanent appoinmens in the services of the bank. Considering the object with which the panel was preparesi and thefact that it was a yearh panel expiring on 1.2-18 we are of the opinion turn the Respondents did not get any right because of mclusion of their names in the tal panetjor permanent absorption in the services ofthe back. Whatever conditional righr mey had come to an end the expiry of the panel. The rivalm of the Respondents as contained in the W.P. was thus. ntisconceived and therefore, the learned Single Judye and size Dnition Bench, when it first devided the appeal were regir Wi dismissing the Writ Petition bad the appeal respectively . H... ther relicson the ulings reported in 19913 SCCA? SHANKARSAN DASH 13. 1INTON OF INDLA wherein the Supreme Court has held that " candidates included in arerir list has na indefeasible right appointment even if a and relying on all these decisions. icanted counsel for the Respondent commended that since we Peritinner has no right to question the wair list and sone there is ao mala fide on the past of His Respondeat/Bank in preparing the wait ist , it cannot be waid that preparar or of wait list was made with mezia fide motive . Under such circumstances , the expiry of the date nemely 31-3-1997, the Pucard gread Ss restoration of the wuit list andbe cannot pray for element as alleged by hira . Further, be relied on the tubags reported in 19921 AR IC2168 STATE OF HARYANA ANTI ORS . VS PLAKA SINGH AND OTHERS wherein the Supreme Couzi has held that now coming to the direction that all those ad- hor semporan have continued for more than a year shonid be regniarised. we find it difficult to suscan 12. The direction has been given withour reference to the existence of a vacancy. The direction an effari nacons thar every po-hoc/temporar, employee who har beve continuedfor one year souly be regulorised even though (a) no vacancy is available for him which means creation ofa vacane: it ! he was nor sponsored by Empires ment Exchange nor war he appointed in pursuance of a rurification calling for applications which means he had entered bya hack door c) he was not eligible and qualified for the post at the theme of har upporniment; td) his record service since his appointment is not satisfutory There are the additional probiens inderated by us in para 13 n hich would arise from giving of such blanket onders None ofthe decisions relied upon by the High Courtjustify such wholesale, arconditional orders . Moreover, from the more continuation ofan ad- irac eraployeefor one sear, it cannot be presumed ribut there is needfor regular post. Such a presumption may be justified only when sucia conimuance extends to several years . Further, there can be no aude of hinh in such marers . Conditions and circaerturors of one writ may not be the same as of the 4987

भारत को राजपत्र अगस्त 4, 2007 /ावण 13 , 1929

भारी खण्ड 3 ( ii) ]

Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances, the prayer for reinstatement in the services ofRespondent/Bank cannot be given to the Petitioner and, therefore, the claim is to be dismissed with costs.

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKAVS UMA DEVI, the Supreme Court has held that merely because a Temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength ofsuch continuance, if the original appointment was not made by following a dueprocess of selection ar envisaged by relevant rules. It is not open to the Court toprevent regular recruitment at the instance of semporary employees whose period of employment has come to an end or of ad-hoc employees who by the verynature oftheir appointment, do not acquire any right" Further, it has also held that " it is not as if the person who accepts an engagement either temporary or casual in nature is not aware of his employтем . Не accepts the employment with open eyes. It may be true that he is not in a position to hargain-not at aner length sincehe might have been searching for sonte employтети so us to make out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate tojettison the constitutional scheme of appointment, perpetuare illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, itwill be creating another mode ofpublic appolnament which is permissible." Further , the Supreme Court while laying down the law,has clearly held that " unless the appointment is in termt of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee . It has to be clarified that merely because a temporary employee of a casual wage worker is continued for a time beyond the serm of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointmevet was not made byfollowing a due process of selection as envisaged by relevant rules. " Further , inCDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGEL, wherein the Supreme Court has beld that "regidorisation furthermore, is not a mode ofappointment and ifappointment is made without following the rules, the same being a nullity, the question of confirmation of an employee upon the expiry of purportedperiod ofprobation would not arise. " Puthear, in CDJ 2006 SC 395 MUNICIPAL COUNCTI , SUTANPUR Vs. SUKINDER KUMAR, the Supreme Court has held that "itis not disputed that the appointment ofthe Respondent was not in sanctioned post. Being a 'State' within the meaning ofArticle 12 of the Constitution of India, the Appellantfor the purpose of recruiting its employeeswas bound to follow the recruitment rules. Any recruitment not

other. Just because in one case, a direction was given to regularise employees who have put in oneyear's service wasfar as possibleand subject to fulfWing the qualificatiλης, it cannot be held that in each and every case, sucha direction must follow irrespective of and without rating into account the other relevant circumstances and considerarions. The relief must be moulded in each case having regard to all the relevant facts and circumstances ofthat case. It cannot be a mechanical act but ajudicious ane. From this, the impugned directions must be heldto be semeally wrzenable and unsustainable. Thus , the Supreme Coutt set aside the orders of lower Courts. He further relied on the decision reported in 1997 11 SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose erary itselfwas illegal and void is concerned, it is to be noted that question of confirmation or regularisation of on irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manuser or on ad- hoc basis against an available vacancywhich is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on sucht a HONE existing wacancy would never survive for consideration and even ifsuch purported regularisation or confirmation i given, it would be an exercise in fruitlity. Itwould amount to decorating astill born baby. Under these circonstances. there was no occasion to regularise them or to give them raid confirmation. The so called exercise of confining these employees , therefore, remained a nullity . "Therefore , learned counsel for the Respondent contended that these temporary comployees were appointed only duc to exigencies and they have not appointed against any regular vacancy and they have only appointed in heave vacancies and therefore , they are not entitled to claim any absorption in the Respondent /Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMARVIDYARTHI & ORS , VS. STATE OF BIHAR AND CRS . wherein the Supreme Court has held that "they are temporary employees working on daily wages. Under shutse circumstances, their disengagemens from service cannot be construed to be a retrenchment under the I.D. ACL The concept of retrenchiment therefore, cannot be stretchedto such an extent as to cover these employees. Since they are only daily wage employees and have no right to the posts, their disengagemenz is not arbitrary. " Lle further relied on the rulings reparted in 1994 3 LL (Supp) 754 wherein the Rajasthan High Court has held that "Linder Section 25G of the I.D. Act retrenchumiext procedure following principle of 'last come first go' is nos mandatory bas only directory, on sufficient proaud's shown, the employer is permitted to departfrom the said principle retreaching seniors and retaining juniors." Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service ,he has not established with any evidence that bis juniors were made permanent by the Respondent/Bank. Any how, if the 4988

THE GAZETTE OF INDIA : AUGUST 4. 2007/ SKAVANA 13. 1929

PAK) Ser.. J (ii ) ]

19. Bu . [ Find since the Supreme Court has held that tenspuery errologers are not intitled to claim any rights for regularisation , merely because they have completed 240 days ofcontinuous service in a period of 12 calendar months and the Supreme Coun nas also held that cach case must be considered or its owa merit and the changes brought about by the samequent decisions of tine Supreme Court probably having regard to the changes in the policy devisions of the Govt. in the wake of prevailing market economy . globalisarkın , privazisation and nuasourcing is valent, find the Petitioner is not entitled to claim cgularisation ur seinscarenzent in the Respondent Bank as alleged by him there . And this point against the Petirioner .

made in violation of such rutes as also in vulation of consectariantai scheme enshrined under Articles If and If of the Constitution of India would be void in lavi." Further. ia 2006 21.Τ.Ν 89 ΜΑDHYA PRADESHSTATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. SC. PANELY wherein the Supreme Court has held h "only because an employee had worked for more 240 days of service by that itself would nos confer any leget right upon him to be regularised in service." The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regardto the changes in the policy decisions oftheGovt. in the wake ofprewarding markes economy , globalisarion . privatisering and oldsourcing is evident, in view of the seuled legal position, as noticed hereinbefore."

Polat No.2:

The next ponr decided in this case is to what selier the Petitioner is carirled !

20. In saew of my teregaing, findings that the Paritoner is a temporary employecanıl he is not emitted to be absorbed in reguar service u : made perihanent merely in the strength of such continuance of work , I find the Petit inrier is ne? cantied to any relied as claimsed by him. No Costs

21. Thus 10 etence is answered accordingly .

Bictured годе P.Aanscribed and typed by lam, rected aixi precounced by me the port this day the 31st famry

K. JAYARAMAN , Presiding Officer

Witnesses Franzined :

For the Peritioner ww: Sril . Thomas ww2SvS Ekamharaum.

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nos has he incest appointed regular vacancy or sanctioned post , the Petitioner is tot entitled to clain regularisation of his service . Further , when they have ne heen questioned the five seulements Entered into between the Respondent/Bank and Federation and since they have not questioned the wait lisi prepared by the Respondend Bank, they are: Hol entitled to dispute the same and they are estoppexi from doing so, l'urther, their prayer belore the labour author: Lies was only in festore the wait list and also for appointment thereon as temporary messenger as per wait lest . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements, the Petitioners cannon no question esther The preparatiuin of wait list or munaler allotted them. Undez such circumstances , it cannot be questioned hy the Petitioner. i

For the Responden: MW Sn C. Mariappan MWS Ramalingam

Documents Marked-

Ex .No Date

Thescription

010888 Xerox cupy of the paper publication in اندودا sed on Ex . Mt

W2 27-0488 Xerox copy of the administrative guidelines issuedby Respondent/Bank Lur ampiermentation ofEx. M1 .

2404-9! Хешs copy of the circular of Respondent Bank to all Branches regarding absorption of daily wagers in Messenger vacancies.

01 (5-9 ) Χειτώy cupy of ilke advertisement in The ftindu er daily wages based on Ex. W4.

17. I find much force in the contention of the learned counsel fortheRespontent . Thougle in the Claim Staremeni , the Petitioners have made so many allegations with regard to preparation of wait list and alan settlements entered im between the Respondent/Rank and Federation , at the time reference . They have not questioned the seulement d the number allotted to each individual in the wait list Further, the Petitioners have not questioned the settlement and they have not alleged that seulement was ikol a bott fide in naturejut it has been arrived at on account of India fide, inisrepresentation , fraud or even corruption or uther inducements Linder such circumstances , 1 find the Petitioners cannot now question the settlements at this stage and since they are only temporary employces and since it is not shown before this Tribunal that the RespondentBank has got sanctioned posts for temporaгу employees unbe absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent/FILTE

20-08-91 Хесох сopy of the advertisement in The Hindu exzending Period of qualifying service k daily wagers .

1503-97 Χιλλ topy of the circular letter of Zonal Office . Chennai about filling up of vacances of messenger posts .

18. Further , the representative for the Petitioner contended that in a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in harure and hence , the Petitioners are entitled for the same relief.

25-03-97 Xezos copy of the circular of Respondenr /Bank to all Branches [ अखण्ड 3 (ii ) ]

4989

भारत का राजपत्र अगस्त 4, 2007/ श्रावण 13 , 1929

regarding identification of messenger vacancies and filling them before 31-3-97

W3 N

Xerox copy of the instruction in reference book on staff about casuds not to be engaged ar office/branchesto domessengerial work .

31-10-80 Xerox copy of the service certificate 15sued by Mannady Branch .

25-04-83

W10

Xerox copy of the service certificate given by Park Town Branch of Respondent/Bank

W11 21-11-83 Xerox copy of the service certificate issued by Manmadi branch .

213-07-89 Xerox copy of the service certificate issued by Chintadripert branch.

W13 25-07-95 Xemx copy of the service certificate issued by Thousand Lights branc: b .

W14 30-12-95 Xerox copy of the service certificate issued by Thousand Tights branch. 25-0196

W15

Xerox copy of the service cenificate issued by Mint Terminius branch.

W16 25-1-96 Xerox copy of the service certificate issued by Mini Terminius branch.

W17 25-401-96 Xerox copy of the service certificate issuedby Mint Terminius branch .

W15 25-01-96 Xerox copy of the service certificate issuedby Mint Terminius branch.

W19 25-01-96 Xerox copy of the service certificate issuedby Mint Terminius branch .

₩23 08-01-97 Xerox copy of the service certificate Issued by Thousand Lights branch.

W2] 111-97 Xerox copy of the service certificate issued by Thousand Lights branch .

W22 Nil

Xerox enpy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitmento subordinate care and service conditions .

₩23 Ni Xerox copy of the reference book on staff matters Vol . 111 consolidated upto 31-12-95.

W24 06-13-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-V. Muralikannan .

W25 06-03-97 Xerox copy of the call bener from Madurai Zonal Office for interview of messenger post K. Subburaj .

W26 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for onerview of messenger post-J . Velmurugan .

27 17-03-97 Xerox copy of the service particulus-J. Velmurugan.

W28 25-019-97 Xerox copy of the letter advising selection ofpart time Menisi -G.Pandi .

₩29 31-03-97 Xerox copy of the appointment orderto Sri G. Pandi

W30 Feb. 2005 Хеток copy of the pay slip of T. Sekar forthemouth of February, 2005 wait list No.395 ofMadurai Circle.

13-02-95

W31

Xerox copy of the Madurai Module Cincular letter about Engaging temporary employees from the panel of wait list. 09-11-92

W32

Xerox copy of the Head Office circular No.28 regarding Norms for sanction of messenger staff.

W33 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

097-92

W34

Xerox copy of the settlement between RespondenuBank and All India Stuff Bank of India Staff Federation for implementation of porros-creation of part time general attendants .

W35 07-02-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general actendanus.

W36 31-12-85 Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadire.

For theRespondent/Mangenend

Ex . No. Datte

Description

Хетоx copy of the settlement .

17-11-87

Хетоx copy of the settlement .

16-477-88

Xerox copy of the settlement 27-10-88

JM4

Χαox copy of the settlement 09-01-91

ME5

Хегох copy of the settlement 30-07-96

09-06-95

Xerox copy of the minutes of conciliation proceedings.

M7 28-05-91 Хегоx copy of the order in W.P. No.7872/91 .

M8 15-05-98 Хегох copy of the order in O. P. No. 2787/97 ofHigh Court ofOrissa.

M9 10-07 99 Хегох сopy of the order of SupremeCourt in SLP No. 3082/99.

Mto Ni

Xerox copy of the wait list of Chennai Module.

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893499.

4990

THE GAZETTE OF INDIA: AUGUST 4 , 2007 / SRAVANA 13.1929

[ PART I- SIC.30 नई दिल्ली, 19 जुलाई , 2007

che dispute on its Gile as CGID No. 165/99 anki issued notices to both parties , Buth sides entered appearance and filed their claim statement and Counter Statement respectively After the constitution of this CGIT Cum Labour Court , the saii dispute has been transferred to this Tribunal for adjudication and this 'Tribunal has numbered it as I.D. No. 238/2004,

का.आ, 2183, औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण चेत्रई के पंचाट ( संदर्भ संख्या 238/2004 ) करे प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

2. The Schedule mentioned in that order is as follriws:-

| सं. एल-12012/467/ 98 - आई आर ( बी -11 ]

अजय कुमार, डेस्क अधिकारो

NewDelhi , the 19th July, 2007

"Whether the demand of the workman Shri J. Thomas . wait list No. 478 for restoring the wain list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as tempurагу messenger is justilied? If so, ro what relief the said workman is estiled !"

3 The allegations of the Peritiuser in the Claizi Sticment are briefly as follows:-

S.O. 2183.-In pursuance of Section 17 of the Industrial Dispunes Act . 1947 ( 14 of 1947) , the Central Government herchy publishes the award (Ref. No. 238/ 2004) of the Central Government ToIndustrial Tribunal - cum- Labour Coun , Chennai as shown in the Andexure in the Industrial Dispute between the management of SrateBanik uf India and their workmen, received by the Central Govammentkom 19-7-2007.

No. L-12012 /467 /98- IRITH

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, CHENNAI

Wednesday, the 31st Jummary , 2007 : PRESENT

K. JAYARAMAN, Presiding Officer Industrial Dispute No. 238/2004

(Principal Labour Court CGID No. 165/99)

In the matter of the dispute for adjudication under clause (d) of suh section ( 1 ) and sub-section 2(A) ofSection 10 the Industrial Disputes Act, 1947 ( 14 of 1947 ) , between the Management of State Bank of India and their workmen

FETWEEN

Sti J. Thomas

Party/Petitioner

AND

The Assistant Deneral Manager, : Party/

StateBank uf India.

Management

2. O. Chenrutal .

APPEARANCE

For the Petizioner

Sri V. S. Ekamberam,

Authorised

Representative.

For the Management

M's . K. Veera Advocates

AWARD

1. The Central Government Ministry ofLabour, vide Onder No. 1.- 12012/467/ 98 IR ( 14-1) dated 12 02-1999 ha referred this dispute earlier to the Tamil Nuch: Principal Labour Court Chennai and the said labour Court has raketi

The Petitioner was sponsored by Employmenl Exchange for the post1: 1 sub staff in Class IV cadre in Staje Hank of India and he was given appointment as messenger after an interview and resical examination . He was appointed on temporary hasis at Nungamhakkam branch from 1986. The Petitioner was orally informed that his services were no more required. The non - employmen the Petitioner and other became subject matter before Supreme Court in the lorm of Writ Petition filed by Shate haak Employees Uason in Wris Petition No. 542/87 which was taken up by the Supreme Coun. The Respondent' Bank in addition to its counter . filed a copy of settlement under Section 81 reached between management of Stare Bank of lundin and All India State Bank of India Staff Tederation and the settlement is with regard to absorption of Class IVlemporary wurkmen who were denied comployment after 1985-86 were classified in the settlemen was under consideration once again and they classified the workmen under three categories namely A. B. and C. Though the classification was unreasonable , the Responden Bank brought the notice of the Petitioner about the interview to be held Brough advertisements . The Petitioner alsu submined bis application in the prescribed formal through Branels Manager of the Nungarobakkain branch. He was called for an interview by a Committee appointed by Responden / Bank in this regard . Rul , they have not informed the result of interview and aiso with regard to appointment But , the Petirioner was inforced orally to joia: 4 the branch where ine iniriall wooked as class V campoyee . From 1985. the Petitioner las been wurking os a tempurary messenger and some times performing work in ether branches also . While working en temporary basis in Chindadiiper branch . another advertisement by the: Respondenr / Bank was made regarding casual workers who were reported tu be in service duringthe same periced. Waile the Petirinner was working ১৬ such, the Manager of the brand informed the Peniwer neally un 3 : -3-97 that his services are not required any more and die need nor attend the tice f 1-4-97.Hence .

4991

13 , 1929

भारत का राजपत्र : अगस्त 4, 2007

[ भाग -साण्ड 3 (ii) )

the Petitioner taised a dispute with regard to his Don- employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication: Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt, to reconsider the reference and the Petitionct requested the Respondent Bank to continue to engage hith in service as obtained prior to 31-3-97 and to regularize bim in service biti du course. The Respondent/Bank took up an unreasonable stand that the service and the mumber of days worked by Petitioner were treated as of no consequence , since according to the Respondent Bank , it engaged the Petitioner only in temporary services after the settlement by which his services and mumber ofdays worked by hum after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliatioil officet .Therefore, the Respondent's action in not absorbing hitn in regular service is unjust and illegal . Parther, the settlements are repungnant to Section 25G 25H of the I.D. Act. The ermination of the Petitioner is against the provisions of para 522(4) of Sasury Award . Even though the settlement speaks about three categories only a single walk list has been prepared and the Respondent/Bank has been regularising, according to their whims and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , titedical benefita etc. to the remporary wowikmen which armokits to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner and extracted the same work either by payment ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair Labour practice. The wait list suffers serious bifirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant clief of regular cosployment in Respondent/Bank with all attendant benefits.

Federation which resulted in five settlements dated 17-11-87,16-07-88,07-10-88,9-1-91 and30-7-96, The said settlemtais became subject matter of conciliation proceedings and minutes were drawn under Section 18(3) ofLD. Act . Innus thereof, the Petitioner was considered бог раститеты прpointment as per his eligibility alongwith similmily placed other temporary employees and the Petitioner was wait listed as candidate No. 478 in wait list of Zonal Office, Chennai . So far 357 wait listed temporary candidates, out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank. It is faise to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose .When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot tam wound and claim appointment. Such of those temporary who employees who were appointed were cogaged for more number of days and hence, they were appointed. Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria , ander category (A) the temporary employees who were engaged for240dayswere to be considered and under category (B) the temporary 270 days aggregate temporary service in My continuous block of 36 calendar months and under category (C) the teraponcy employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimumn 70 days aggregate tromporary service in any continuous block of 36 calendar months were to be considered. As per Clause 7, the length of temporary service was to be considered for seniority in the wilt list and it was also agreed that wait list was to lapse in December, 1991 and the cut off the date was extendedupto 31-3-97 fot Bling up vacancies which wereto arise upto3.1 12-94.ThePetitioner has no valid and enforceable right for Appointment. The Respondent had implemcoted the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies. In terms of aforesaid settlements , out of744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listedat 478 he was not appointed. The said settlements were bona fidewhich were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and bis claim is liable to be rejected. Further , the said settlements werenot questioned by any union so far and the seulements of bank level settlements and operated throughout the mountry. The Tamil Nadu Industrial Establishmeat (Conferment of Permanent Status to Workanen ) Act, 1981 does not apply to Respondent/Bank and this Tribunal has mro jurisdiction to entertain such plea. It is not correct 10 say that documents and identity of Petitioner was veritied before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of 4. As against this , the Respondent in its Counter Statement alleged that reference made by the ovt for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence the question ofregular appointment /absorption does not atrise. The engagement of Petitioner was not authorised. The Petitioner is estopped froch making claim as per Clستم Statement. The settlement drawn under provisions of Section 18( 1 ) and 18(3 ) of I.D. Act in lieu of provisions of law.retrenchiment and implemented by RespondentBank . The claim of the Petitioner is not bona fide and made with lterior motive. The Petitioner concealed the material facts thatbewas wait listed as per his length of cogagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent Bank engaged the temporary employees for performanc of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption mad when their casewas espoused by State Bank of India Staff

3218 307-23

2 4992

TILE GAZETTE OF INDIA : AUDUST 4, 2007/3 KAVANA 13 , 1929

Рлкг II-Ѕы.3 (i ) )

PointNo. 1 :

pernacien: messenger .As per seulements , vacancies upto 31-12-94 west filied up against the waited list of temporary empinyees and vacancies for 1995-96 bas to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further, for circle of Chennai wait list of Jaily wages was net finalized and hence nos published and there is only one wait list for the appointmem of temporary employees . After the expiry of wait list , the Petitioner has no ciaim for permanent absorption. Hence , for all these reasons , the Respondent prays to distruss the claim with COSTS.

1. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial dispures have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in Lerstre of the relevant guidelines / circulars of the Respondent/Bank in pertmanent vacainçies in subordinate cadre on temporary basis.After engaesop them intermitently for some years, the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent /Bank terminated several temporaгу croployees in the year 1985, the Stare Bank Employees Unión had tiled a Writ Petitionbetore the Supreme Courr in protect the legal and constitutional rights of the workmen woodermed and while the roatter was pending in Writ Petition No.542 (civil ) 1987 , the Respondent/ Bank marriedly entered into a settlement on the issue of absorption of temporaгу employees and filed it before the Supreme Court at the time of tinal hearing of the Writ Petition . This settlement has hocotte an exhibit of the Respondent/Bank and has hoern marked as Ex.MI. The Petitioner in this case and the Petitioners in the connected cases attacked this seulemen: as it is not hinding vo them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent Bank without any intimation or raliçe denied an opportunity to work in the bank after 31-3-1997 and therefore, they have ruised the dispute in the year 1997before the labour authorities and they questioned the retrenchmeru as unjust and illegal and they further prayed fur beinstatement with back wages and other allerklini benefits.

5 Ir. the additional claida statement , the Petitioner contended that he was having been sponsored by Employment Bachange and baving undergone medica! crantimabon, the Petitsoner has fulfilled the criteria set out the Respondent Bank for selection of candidate for appointsten: 10 the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore, the RespondentBank is duty bound on regularise the services afe Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the Resperdes /Bank has issued a circular to the effact that under no circumstances, wait listed persons like the Petitioner be engaged even in menial category , thus, the Respondem / Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the RespondentBank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has heen arbitrarily filling up the vacancies with the personn other than wait listed workmen according to their whims and fancies Hence , the Petitioner prays that an award may be passed in his favour .

6 Again, the Petitioner filed a rejoinder to the Coume Statement of Respondent , wherein it is stated afl ULe secrletments made by the bank with the State Rank of ladi : Staff Federation were under Section 13 of theAct and not under Section 18 ( 3 ) of the Act . As per recruitment rules of the Responden/ Bank , recruitatient of class TV staff in the Responden Bank is in actordance with the instructions laid down under codified circulars of che RespondentBark . Fiven in the Writ Peritinn before the High Cour: in. W.P. No. 7872 of 1991 , the Petitioner questiered the settement dated 27-10-88 and 9-1-91 . It is False age that the selllements are contrary to the rights the Periter . Hence ,the Petitiones prays that an award may be passed in this favour.

? b. these circumstances , the points for my Kursideration e-

fii "Wheiler the demand of the Petitioner in Wait List No 478 for restoring the wait tist of temporary messenger in the Respondent Bank and consequential appointment Thereupoti as lemporary messenger is justified? "

"Ta whar reizet the Petitioner is emitted !""

9. On behalf of the Petitioner , it is commended ria: these Petitioners were recruited as temporary employces in the Respondeat/Bank under the guidelines and circulars issued by the Respondent/ Bank from time to time and further , the same guidelines carry the procedure Jor regularization of service of the temporary employees aux any seblement in this regard is redundantiam in aпу сазе. the Petitioner is not bound by settlement under Section. 18( 1 ) entered into between the alleged l'ederation and the Respondent/Management . They further coprended nhại though the RespondentBank has stated that the Petitioner has not worked for more than 240 days in continuous period of 12 calendar months and was not in continuous service cen 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees ar branches/offices are not allowed to be in service exceeding 200 days. hence the question of Petitioner working tur 240 days dues not arise at aill. Further, they have invoked the relevant provisions ofChapter V A of the I.D. Act und it is preposterous te contend that the Petitioner has no valid and enforceable right for appointment as Seerinn 250 aad 2513 are very much applicable to the Petitioners who are retrenched messengers and are cligible to be reinstated . Learned representative for the Petitioner contended that in 1991 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S.

4993 [भाखण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 4 2007/ আমল 13 , 1929

with regard to this wait last . Further the Hon'bleHigh Chuit hasbeld in its order datert 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it as stated that it is clear that the 1987 seuleorm was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement white the 1988 settlement deall with daily wager in Class IV category who were paid wages daily on mutual agreement hasis. In such circumstances, as rightly comended the respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed Two distinct and separate classes und they cannot treat on : class and their action undoubtedly amounts to violation article 14 of Constlaginn of India. Further , the averment of MW ] and the statements in Counter Stustement are contrary to the above and it is nothing but a desperate alterapt to wriggle out the illegality committed or prepetruted by the Respondem/bank by combing equals with unequals. It is further contended on behalf of the Petivioner that as per deposition ofMW ] wait list under Ex . M10 comprises of both messengerial and non - messengeriol canclicdanes .While the temporary employees were appointed atter due process of selection and were paid wages on the basis of industrywise settlement, it is no so to in the case of casuals. Therefore, both belongs to two different and distinct categories .But , Ex . M3 provides for the same norms to the casual as in the case of termporsiy employees in the matter ofabsorption. Therefore, it is violative ofArticle 14 & thof Constitution of India . Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not inconformity with the instructions of Ex . M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not heen prepared as per instructions in Ex . W2 eircular regarding projected vacancies for the period from 1987 to 1994. Furthermore. no wait list was released/published even after the Coun onder in WMP No. 11932/91 in W. P. No. 7872/9 ] directing the RespondentuRank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore, wait list under Ex . MIO does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex . M10 bus been prepared in viotation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex.MI was not produced at the timeof conciliation proceedings held during the year 1997- 98beld at Cheunai and Mardurai and only during the year 2003 the Respondent/Bank produced the wart list Ex.MID before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement on absorption of temporary ensplinyees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal lause 2 ( 00 ) of the 1.D. Act, 1947. Though the Petitioner's SATYAMAND OTHERS the Supreme Court has held that Chapter V-Aof the LD. Act providing for retrenchment is not enacted only for the benefit of the woritisen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmea Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that on hehalf ofthe Petitioner that Ex.W2, W3 and W8 as well as Ex.MB. which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further, a combined study of ExM1 and the avermets of MWI and MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex.MI deals with categorization of retrenched temporary employees into 'A, H, and C' , but this categorization of ' A, B & C is quite opposed to the doctrine of "last come fust go' or দি come last go' and therefore , the categorization in Clause 1 is illegal . Clause (a ) of Ex.Mi provides an opportunityto persons who were engaged on casual basis and allowedto work in leave/ casual vacancies of messengers, farashes, cash coolles ,water boys , sweepers ete, for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in ReferenceBook on Staff matters , copy ofwhich is marked as Ex. WX . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's elreutars /instructions . In such circumstances , the absorption of casuals along with the cligible categories is not valid. Therefore , these persons who were engagedby the Respondent / Bank on casual basis should be given permanent appointment in the bank service .Those casuals were given more beneficial treatment in the matter ofarriving 21 qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex .W2 four types ofwaiting lists have to be prepared. But the Respondent Bank has alleged to have prepared only one wait list for cach module as per Ex.M10 in this case. Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers. Even MWI is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex Mt , M3 and M4 respectively .But , when MW1 has spoken about the settlements , he deposed that seulement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement Further, according to MWI wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement 4904

THE GAZETTE OF INDIA AUGUST 4, 2007 /SHAVANA 13 , 1929

PART -SH3 (10)

days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industriاه Disputes Act , therefore, their retrenchment from ser vipe is iliegal and against the mandatory provisions of Section25 and therefore, they are deemed to be intinuous service ui the RespondentRank and they are entitled to the henefits under the provisions of I.D. Act .It is further contended on behalf of the Petitioner that though some of die Perinioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and mat included the Sundays and pai holidays as days on which the Petationers have actually worked and hence , they have also completed 140 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 BLLE539 WORKMEN OFAMERICAN EXPRESS INTΙΚΝΑΤΙΟΝΑL . HANKING CORPORA DON VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherear: the Supreme Court has held that the expression actually worked under the employer cannot mean that those days only when the workmen worked with hammer, sickleur pen but must necessarily eninpellend ail those days during which they were in the empuyanent of the employer auk for which he had been paid wages either under express or implied contract of service or by compuision of stalule . standing orders etc." ] is further argued that call letters produced by the Perizioner will clearly prove that the RespondentBank has conducted the interview and selected the temporary employees whin have rapported k have submitted their application for absorption as per the bank' > circular and therefore, their retrenchment is lega . In all these cases , The Petitioners were in samploymeas sub staff in cariy 1980s but were denied further engagement un account of settlements/lipsing of wait ils and טויי these Petitioners some of them have completed 240 fitys and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for ne fault oftheirs, they find themscives stranded in life midsucai . They have also not gainfully employed . la such circumstances , this Tribunal hss 10 pess an award in Be favour.

work in the Respondent/Bank is continuous and though thePeticioner bas performed the duties continuously which 15 still in existence, the categorization as such is not valid and the provisions of Sastry Award are also violated. Further , the representative of the Petitioner relied on the ralings reported in 1985 4 SOC 201 H.D. SINGH V RESERVE BANK OF INDIA AND OTHERS wherein in the Suprenie Court bas held that " to employ workmen as 'badlies' casuals or temporaries and to continue them as such for many years with the object of depriving then of the status and privileges of permanent workman is illegal " . carved representative further contended that ExMIU wuit Sist has not incen prepared in accordance with principle of seniority in the legal sense , since the selected candidates wish longest service should have prioriry over hose who joined the service later and therefore , the wait ist under Ex.M10 which has been drawn up is contrary to law and also bard In law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement . bul in ulter violation and in breach of it. Though clause 2 (c : of H. M4 states that candidates found suitable for ресталед : арроіnament will be offered appointment against existing future vacancy anywhere in module or circle and in case, acandidate fails to accept the offer ofappointment orposting wirbon the prescribed period , he will be dremed 10 have refused it and the name shall stand deleted from The respective panel and he shall have no further cluim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for heatment of MW 1. Therefore, the tonnination of the Petitioner who was in regular service of the Resparkle ! Hack is arbitrury . mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of senlemeni on absorption of temporary employees .Though theRespondent/Bank has produced Ex. M6 which alieged to be a capy of minutes of conciliation proceedings dated 9.6-75 betore Regional Labour Commissioner (Central ), Hyderabad, it is neither a 18 ( 3 ) settlement nor 1213 ) settlement as claimed by the Respondent /Bank which says only with regard to modification of Ex . MI to M4 made in τοππης σεΕλ. 16. Through the Respondent/ Bank, produced Ex . Milon orders passed by High Court of Mauras inWMP No.1 1932/91 in W.P. No. 7872/91 ceased i.have ant relevance when the main wris has been disposed of in ane year 1999 and therefore , they do not have any hearing in the case of the Petitioner . Further, though the Responden /Management has examined two witnesses , the deposition of management witnesses during the cross examnation had become apparent that they have no personal Kowledge about the settlements which are marked as Ex. Μίκι ΜS . Above all , though the Respondent/Bank hits relerred to voluntary retirement scheme. In the Respondo Rank it was implemented only in the year 2001 and ir cons itutes post reference period and hence evidence or Respondent Bank has no application to the Petitioner's The Petitioners have completed the service of 240

10. But, as against this , the learned sensor counsel for the RespondentBank contended thus the reference madeby the Goverment self is not maintainable in view of the faces and circumstances of the case . The Tetirigim in this case and the Petitioners in the connected disputes were not in continuous service . Heace , the question of regular appointment'absorption does not arise at all unc their engagement was not authorized . Further .the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 1811 ) and 1813 of the ID Act, in lieu of the provisions of Law and implemented by the RespondentBank and the claim of the Petitioners are normalade and are made w uiterior motive . Further , they have enacealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The Keskinden / Bank 4995 [ भाग खण्ड (ii ) ]

भारत का राजपत्र अवस्त 4 2007/ श्रषण 13, 1929

workmen were members and if there was nothing unreasonable or unfair in the teams of the settlement, it must be binding on the contesting worlonken siso ." He further relied on the rulings reported in ATR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has beld that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is dispate that the settlement is not hona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other induceracats , it could be subject matter of yet another industrial dispute which an appropriate Govt, may refer for adjudicauion after examining the allegations as there is an underlying assumption that the seulement reached with the help of the conciliation officer must be fair and reasonable ." Relying on all these decisions , lcammed counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it isbinding on the Petitioner. Furber, he angued that no union of the bank has questioned the settlement and in such circumstances, it cannot be said that it is not binding on them and he is estopped from disputing the БАРТИ

11. Learned counsel for the Respondeat further contended that though the refereouz made in this case and other connected disputes is ' whether the demand of the workinan with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointmenl thereupon as temporary messenger is justified?" The Peritioner contended that the retrenchment made by the RespondentBank is not valid and be has to be reinstated in servicewith full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt . is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contendedby thePetitioner and not reinstatement as alleged by the Petitioner in the Claim Starteroent

was cogaging temporary employees due to business exigency for the performance of duties as messenger. Further , the allegation that he was sponsored by LimploymentExchange is incorrect and the allegation that be worked as kamporary messenger is also incorrect , they were engaged against leave vacancies . The seulement entered into by the Respondent/Bank and the federation were hona fidewhich were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and acordingly he was wait listed and therefore, The Petitioner is estopped from questioning the seulement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . V. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under section 12(3) the union cntered into a settlement with the managrancar settling the c'aim of 11 workmen and the woriumen resigned frans the joh and received bernimal benefits, but the workinen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held har " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workrmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORTCORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "Therefore a seulement arrived at in the course of the conciliation proceedings with a recognized majority min will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts , the object obviously is to uphoid the sanctity ef settlemenes reached with the active assistance of the Cursciliation Officer and to discourage an individual employee or a minority umion from scuttling the setricment " I further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even orruption or other inducements . But in the absence of such allegations , a seulement in the course of collective bargaining is entitled to due weight and consideration." Learned counsel for the Respondent further relied on the wlings reported in 1997 I LLJ 308 K.C.P. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i ) those arrived at outside the concitiation proceedings under section 18 ( 1 ) of the I.D. Act and ( ii ) those arrived at in the course of conciliation proceedings under section 18 (3) . A settlement of the first category has limited application and binds merely parties tu it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workaren of the establishment Even incase ofthe first category, if the seulement was reached with a representative union of which the contesting

12.Bur, as against this on behalf of the Petitioner itis contended that onere wording of reference is not decisive in the matter of tenability of a reference and be relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " Inert wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on rocrits and not to find out some technical defects in the wording of reference, subjecting the poor wurknum to hardship involved in moving the machinery again." 11 further beld that "The Tribunal should look into the pleading and find out the exact nature of pleading of 4996

THE GAZETTE OF INDIA : AUGUST 4. 2017 / SRAVANA 13, 1929

[PART -S . 3 ] The Petitionerno find out the exact nature of dispute insteart of refusing toanswer the reference on merits ." Further,he argued thor the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC1664 VANSAGNATHAN ORIENTPAPER MUIS VS. INDUSTRIAL TRIBUNAL & ORS . whereto che Madhya Pradesh High Court has held that " the Tribunai cannot go belkind the terms of reference, but that does nut mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMHANTHAN VS. PRESIDING OFFICER, LABOCK COURT, MADRAS , wherein it has been held that it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider rise order ofreference it a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes betsleen the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is ant bappily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions. the representative for the Petitioner argued that though so the reference . it is out mentioned that whether the retrenchment is valid or mut, from the pleadings it is clear that the Petitioners have been retrenched from the Respondenu Bank and therefore , this Tribunal can look into the pleadings of the Peritioners and can decide whether the Peritioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by hinı . Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or Dot?But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since il is not questioned by any of the unions of the Respondent' Bank, 1 find the Petitioner is not entitled to question the settlement .

sequires a right of appointment in Govt. service in an existing or a future vacancy In hat case . pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff anda policy decision has been taken to reduce the number of vacancies and consequently, a certain number ul boltomm persons were removed from the select list and the remaining selectees were given appointments according to ther courmparativemerirs. In which , the Supreme Court has beld thaa " in such circumstances , dental el appointinent to the persons removed from the select list is not arbitrary and discriminatury . " Ile fugiter relied the rulings reported ir. 199765CC 584SYNDICATE RANK & ORS . VS. SHANKAR PAUL AND OTHERS wherein the Supreme Court has leeld that "by its delter Jilled 7.2.67 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was nut to confer on them any right to seek permanent appointment in the services of the hank. Considering the object with which the parel was prepared and the fact that it was a yearly panel expring un 6-2-98, we are of the opinion rha: The Respontems did ast per any right because of inclusion of their names in the said penel for permanent absorphurr in the services of the bank. Whatever ennditional right They had come to an end with the expiry of the canel .The claim of the Respondents as comained in the W P. Wils Dhus , misconceived and therefore , the learned Sungle Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and ine appeal respectively." He further relied on the rufings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDLA wherein the Supreme Court has held that "cardideles included in merit list has no indefeasible right to appointntent ever if a vatancy exists " and relying on sit these decisions , learned counsel for the Respondent xantesider that sincethe Petitioner has right en question the wait list and since there is no male fide on the part of theRespondent Bank in preparing the wait list . it cannor be said that preparationel want list was made with mala fide marive. Under such circumstances , after the expiry of the date namely 31-3-1997. The Pethuner cannur siteard for restoration of the war list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IK 2168 STATE OF HARYANAANDORS VS. PIARA SINGLIANT OTHERS wherein the Supreme Cour has heid har " now coming to the direction that all those ad hoc temporary employees who have corinus for mere than a year should be regularised . we find it dillacult to sustain ti The Directiun has been giver srhout reference to the existence of a vacancy The duetinn in effect means that every ad - hoc temporary employee whe has been continued for one year should be regularised even though ( 3 ) no vacancy is available Lur him which means Teation of a vacancy: ( b) he was not sponsored by Employni Exchange nur wils he apported in aursuarve of a romification calling for applications which means he hai emered by a back door )c) he was not eligible and qualified for the post at the t אנותנ o: his appointment : d : nis record of service since his 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted . dow the Petitioner cannot question that he should be reilustated in service and be relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V. VUEESH wherein the Supreme Court has held that the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination भाग -खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

4997

the rulings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court bus held that "Under Section 25G of the LDAct retrenchiment procedure following principle of 'last come first go ' is not roandatory but only directory. on sufficiem grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors. Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank.Any how. if the Petitioner has shown anything, the RespondentBank is ready to establish the fact before this Tribunal that be has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissedwith ensts.

appointment is not satisfactory . These are the additionat problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale. unconditional orders . Moreover, from the mere continuation of an ad - hoc employee for one year , it cann be presunied that there is need for regular post. Such a Presumption maybe justified onlywhen such continuance extends to several years . Further , there can be no rute of thumb in such matters. Conditions and circumstances of one unit may not be the same as of the other . Just because inone case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannotbe held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and consideracions . The relief must he moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mexchanical act but ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 115CC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF RIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regutarisation ofappointment in excess of sanctioned posts "So for as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it isto be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular runner or on ad hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacaлку , question of regularising the incumbent on such a non existing vacancy would never survive for consideration and even if such purported regularisation or confirmation isgiven, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees, therefore, remamed a nutlity . " Therefore, learned counsel for the Respondent contended that these temporary employers were appointed unly due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in theRespondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 IUMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Ilnder these. circonstances , their disengagement from service cannot be construed to be a retrenchment under the ID. Act . The concept of retrenchment therefore , cannotbe stretched to such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts. their disengagement is not arbitrary." He further relied on

15. Ieamed Senior Advocate further argued that even in recent decision reported in 20064 SCC SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is not open to the Court to prevent reguler recruitment at the instance of temporary employees whose period of employment has come to an end or of ad -hoc employees who by thevery nature of their appointment, do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelisood and accepts whatever be gets . But on that ground alone, it would not be appropriate to jettison the onstitutional scheme of appointment, perperuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so, it will be creating another mode of public appointmeal which is not permissible. " Further , the Supreme Court while laying down the law, has clearly held that "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of bis appointment, he would not be entitled to be absorbed in regular service or made permanent mercly on the strength of such continuez , if the original uppointment was not made by following a due process ofselection as envisaged by relevant rules. Further, in CDJ 2006SC443 NATIONAL FERTILIZERSI.TD. ANT OTHERS VS. SOMVIR SINGH ,wherein the Supreme Court hus held that"regularisation furthermore, is not a mode of PART T-SEC. 3 ( 1) ] 4998

THE GAZETTE OF INDIA : AUGUST 4. 2007 / SRAVANA 13. 1929

stage and since they are only temporary employees and since it is por shown before this Tribunal that the Respondent/Bank has got sunctioned posts for temроrагу employees tobe absorbed , I find the Petitioners cannot clain for reinstatement or regularisation in services of the Respondent/Bank .

18. Further , be representative for the Petitioner contended that in a similar cases, thus Tribunal had ordered for reinstatement with back wages and these disputes are also similar in mature and hence , the Petitioners are camilled for the sarte relief.

19. But, I find since the Supreme Court has held that temporary employees are riot entitled to claim any righi for regularisation , merely because they have complexex! 240 days of continuous service in a period of 12 calendu months and the Supreme Court has also held that each case must be considered ont its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy. globalisation, privatisatson and uutsourcing is evident . I find the Pentioner is not entitled to claim regularisation or reinstatement in the Respondent /Bank 35 alleged by him . Therefore , I find this point against the Petitioner .

appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employee upon the expiry of purported period of probation would not arise. Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR VS. SURINDER KUMAR, the Supreme Court has held that it is not disputed that the appointment of the Respondent was not in sanctioned post . Reing a " State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitmert rules. Any recruitment made in violation of such rules as also in violation of constitutioon scbease castrimed under Article 14 and 16 of the Constitution of India would be void in law. Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS S.C. PANDEY wherein the Supreme Court has held that " only because an employce had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service." The Supreme Court also held that " the changes brought aboutby the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisationland outsourcing is evident, in view of the seuled legal position , as noticed hereinbefore."

PointNo. 2

The next point to be deridel in this case is to what relief the Petitioner is entitled ?

20. In view of my foregoing findings that the Petitioner is a temporary employee und he is not entitled to be absorbed in regular service or made permanent merely ual the strength of such continuance of work . I d Peûtioner is not entitled tu any relief as claimed by him . No Custs .

21. Thus. the reference is answered accordingly .

(Dictated to the PA, Hanscribed and typed by bum. currected atul pronounced by me in the open cutir day the 31st Juнигу 2007.1

K. JAYARAMAN , Presiding Officer

Witnesses Examined:

For the Petitioner WWISE J. Thomas WW2 Si V.S. EkambarumI 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post k has he been appointed in regular vacancy or sanctioned post. the Petitioner is not entitled to cloro regularisation of Isis service . Further , when they have not been questioned the five settlements entered into between the Responkien /Bank and Federation and since they have nos questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlenems, the Petitioners cannot now question either the preparation of wait list or nuraber alloned to them . Under such circumstances . it cannot be questioned by the Petitioner.

Ior the Itespondenr MWISri C. Mariappan MW2 Sn C. Ranaalingam

Documents Macked Thx.No. Date Description

W! 03888 Xerox copy of the paper publication in daily Thanthi based un Ex.MI.

W2 20-04-88 Xerox cupy of the administrative guidelines Issued by Responden /Bank for in- plementation of Ex.M1 .

34-04-91 Xerox copy of the circular of Respunktem/ Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, die Petitioners have made so many Wlegabuns with regard in preparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference, they have not questioned the setilenean er the wumber allotted in each individual inthe wait list . Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was Dot a bona fille in nature or it has been arrived al cenunt of mala fide.misrepresentation , fraud or even corruption or other indticements . (hnder such circumstanees . I find the Petitioners cannot now question the settlements at this भाग - खण्ड ( ii) ]

4999

भारत का राजपत्र अस्त 4 2007 / 13, 1929

W4 01-05-91

W22 26-03-97 Xerox copy of the letter advising selection of part timeMenial G. Pundi Хегоx onpy ofthe advertisement inThe Hindu on daily wages based on Ex .W4

W5 20-08-91

₩23 31-03-97 Xerox copy of the spointment orderto Sri G. Pandi .

Хегол copy ofthe advertisement inThe Hindu extending Period of qualifying sevice to daily wagers.

W24 Feb. 2005

₩6 15-03-97

Xerox copy of the pay slip ofT.Sekar for themonth of February, 2005 wait listNo. 395 of Madurai Circle.

Хегоx copy of the Circular letter of Zonal Office, Chennai About filling up of vacancies of massenger posts

W25 13-02-95

25-02-97

Хегох сору of the Madurai Module Circular letter aboutEngaging temporary employees from the panel ofwait list

W26 09-11-92

Xerox copy of the circular of Respondent/Bank to all Branches regarding indentification of massenger vacancies and filling them before 31-3-97,

Xerox copy of the HeadOffice circular No. 28 regarding Norms for sanction of messenger staff.

Nil

09-07-92

W27

Xerox copy of the minutes of theBipartite meeting.

09-07-92

W28

Xerox copy of the instruction in Reference Book on staff about casuals not to be engaged at office/baranches to do messcagerial work

Xerox copy of the service certificate issuedbyNungambakkam Branch.

WIO 21-05-94

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

Xerox copy of the service certificate issuedby NungambakkamBranch

W29 07-02-06

W11 10-06-94 Xerox copy of the service certificate issued by Royapettah Branch .

Хегох сору of the local Head Office circular about Coversion of part time employees and redesignate them as general attendants .

W12 0742-95 Xerox copy of the service certificare issued by Elephant GateBranch.

W30 31-12-85

W13 14-11-95 Xerox copy of the service certificare issuedby Nungambakkam Branch.

Хегох сору оf the local lead Office circular about Appointment of termporary employees in subordinate cadre.

W14 10-06-97

FortheRespondent /Management :-

Xerox copy of the service certificale issued by Numgambakkam Branch.

Ex. No. Desc

Description

w Wiy 12-06-97 Xerex copy of the service certificate isswert by Chintadripet Branch

MI 17-11-87 Хотолx copy of the settlement .

W16 N

Хетохx copy of the settlement.

16-07-88

Хегоox copy of the settlement.

27-10-38

Хетоx copy of the settlement.

09-01-91

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care& service conditions .

M5 30-07-96 Хатox copy of the settlement W17 Nil

M16 09-06-95 Хатоx copy of the roimates of conciliation proceedings.

Xerox copy of the Reference book un Staff maners Vol . Il consolidated upto 31-12-95

M7 28-05-91

W18 06-03-97

Xerox copy of the order in W.P. No. 7872/91.

Xerox copy of the call letter from Madurai Zonal Office For interview of messenger post-V. Muralikarman

15-05-98 Хегох copy of the order in O. P. No.2787/97 ofHigh Court ofOrissu ₩19 06-03-97

M9 10-07-99 Xerox-copy of the order of SupremeCourt inSLP No. 3082/99.

Xerox copy of the call letter from Madurai Zonal OfficeFur interview ofmessenger post-K. Subburaj

MH N

W30 06-03-97

Xerox copy of the wait list of Chennai Module.

Xemx copy ofthe call letter frown Madurai Zonal Office For interview of messenger post-I. Velmurugan

M11 25-10-99

W21 17.03-97

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893499.

Хетох copy of the service particulars- J.Velmurugam

3218 GV07-24 5000

THE GAZETTE OF INDIA: AUGUST 4, 2007 / SRAVANA 13. 1929

[PART IT-- SFC Kiis नई दिल्ली, 20 जुलाई, 2007

their claim statement and Counter Statement respectively. After the constitution of this CGT- cum labour Court , the said dispute has been transferred 10 this Tribunal Jor adjudication and this Tribunal has numbered it as L.D.No. 227/2004.

2. The Schedule mentioned in that order is as Follows:

कर.आ. 2184-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इन्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औधोगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , वेनई के पंचाट ( संदर्भ संख्या 227/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुमा था ।

[ में एल-12012/429/98- आईकाश ( बो-1 ) ] अजय कुमार , डेस्क अधिकारी

: NewDelhi , the 20th July,2007

"Whether the demand of the workm Shr M. Ashok Kumar, wait list No.468 fur restoring the wait list of temporary messengers in the establishment of State Bank of lodia and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled?"

3. The allegations of the Petitioner in the Claim Statement are briefly as follows:-

$.O. 2184-In pursuance of Section 17 of the Industrial Dispunes Act, 1947 ( 14 of 1947) , the Central Government bereby publishes the Award (Ref . No. 227/ 2004] oftheCentral Goverment Industrial Tribunal - cum- Labojur Court , Chennai as shown in the Annexure in the Industrial Dispute between the management of StateBank of India and their workmen, received by the Central Goverment on20-7-2007.

[No. L- 12012/429/98 - IR (B- 1) 1

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL, TRIBUNAL CUM- LABOUR COURT, CHENNAI

Wednesday, the 31st January ,2007

PRESENT

ShriK. JAYARAMAN, Presiding Officer Industrial Dispute No. 227/2004 (Principal Labour Court CGID No. 126/9)

(In hexmartter of the dispute for adjudication under clause (d) of Sub-section ( 1 ) and Sub- section 2(A) of Section 10 of the Imonstrial Disputes Act, 1947 ( 14 of 1947 ), between the Maanagement ofState Bank of India and their workmen)

PETMEEN

Sci Mi Ashok Kumar

: Party Petitioner

AND

TheApsistant General Manager , II Party / Management StateBank of India, Z.O. Chennai.

APPEARANCE

For the Patitioner

:Sri V. S. Ekamb Authorised Representative .

For the Management : M/s. K. $. Sunder

Advocates.

AWARD

1. The CentralGovernment Ministry ofLabour , vide OrderNo. L- 12012/429/98 - IR (B- 1) dated 11-2-1999 has referred this dispute carlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as COLD No. 126/99 and issued notices toboth parties. Both sides entered appearance and filed

The Petitioner was sponsored by Employment Exchange for the post of sub- staff io Class TV cadre in State Bank of India and be was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Perianet branch from 19-3-1983. The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before SupremeCourt in the form of Writ Petition filed by State Bank Employees' U'nion in Writ Petition No. 542/87 which was taken upby the Suprame Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlemen under Section LB(I reached between management of State Bank of India and Ali Inelia State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlemen was under consideration voce again and they classified theworkmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought in the notice of the Petitioner about the interview to be held through advertisements . The Petitioner alsu submitted his application in the prescribed format through Branch Manager of the Periamet branch. He was called for an interview by a Coman ittee appointed by Respondent/Rank in this regard . But , they bave not informed the result of interview and also with regard to appointment . But the Teritioner was informe orally to join at the branch where he initially worked as a class IV employee. From 13-3 1984, the Petitioner has been working as a temporary messenger and some time performing work in uther branches also. While working on temporary basis in HVF Avadi branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3 1997 that his services are not required any more and he need not attend the office from 1-4-1997 . Hence , the Petitioner raised a dispute with regard to his non-employment. Since the conciliation ended in failure, the matter was referred to this Fribunat for [ भाग -खण्ड ( ii) ]

5001 भारत का राजपत्र अगस्त 4 , 2007 / श्रावण 13. 1929

adjudication. Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, be has made a fresh representation to Govt . o reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as Obtained prior to 31-3-1997 and to regularise bira in service in due course. The Respondent/Bank took up an reasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 250 & 25H of the LD . Act. The termination of the Petitioner is against tise provisions of Para522 (4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been Regularisingaccording to their whim and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , Inave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circalar . The Respondent Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assusthed name or by both which acounts to unfair Labour practice. The wait list suffers scrions infirmitics and it is Dot based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits.

4.As against this , the Respondeat in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable.The Petitioner was not in continuous service. Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised . The Tetitioner is estopped from making claim as per Clim Statement. The seulement drawn under provisions of Section 18 ( 1 ) and 18 (3 ) of LD. Act in lien of provisions of law, retrenchroent and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was wait listed as per bis length of cogagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary cumployees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when them case was espooned by StateBanik of India Staff Federation which resulted in five settlements dated 17-11-1987, 16-07-1988,07-10-1988, 9-1-1991 and 30-7-1996.

The said settlements became subject matter of conciliation proceedings and mines were drawn under Section 18( 3) of 1.D. Act. Ia terins thereof, the Pesitioner was considered forpertineat appointmacat as per bis eligibility sượng with similarly placed otlur temporary employees and the Petitioner was wait listed as candidase No. 466 in wait lisa ofZonal Office, Chennai . So far 357 wait listed temрогаму candidates, out of 744 wait listed temporary employees ware permanently appointed by Respondent/Bank. It is fabe to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacanciesas and when it arose. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turu amund and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed . Under the settlement, examployees were categorised a A, B, and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the trusровагу employees who were engaged for 240 days were to be considered and under category (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and undr category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed thust wait list was to lapse in December , 1991 and the cut off date was extended upto31-3-1997 for filling up vacancies which were to arise upto 31-12-1994. The Petitioner has no valid and enforccable right for appointment . The Respundea had implemented the voluntary retirement scheme and ev the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaidtemporary employees were working in leave vacancies and not in regular permanent vacancies. In terms of aforesaid settlements, out of744 wait listed candidates , 357temporary employees were appointed and since the Petitioner was wait listed at 466he was not appointed .The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly anci his claim is Bable to be rejected .Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the Country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Worlusen) Act, 1981 does not apply to Respondeat/Bank and this Tribunal has nojurisdiction to entertain such plan, it is not correct so say that documents and identity ofPetitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements, vacancies upto 31-12-94 were filled up against the waited list oftemporary 5002

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13, 1929

Ракт Ѕыс. 3 ) ]

() "To what relief the Peridoner is entitled ?" Point No. 1:

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further, for circle ofChennal wait list of dailywages was not finalized and hence not published and there is only one wait list for the appointment oftemporary employees.After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence, for all these reasons , the Respondent prays to dismiss the claim with casts .

interview and having been selected and wait listed in terms ofthe relevant guidelines//circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis.After engaging therm intermittently for some years , the Petitioner in this case and other Petitionens in the connected disputes were terminated without any notice. Since theRespondent /Blank terminated several temporary employees in . the year 1985 , the State Bank Employees Union bad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (civil) 1987, the Respondent Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filled it before the Supreme Coun at the time of final hearing of the Writ Petition . This settlementhas become an exhibit of the Respondent/Bank and bas been marked as Ex . Ml . The Petitioner in this v and the Petitioners in the connected cases allacked this settlement as it is not hinding on them on the ground that theyhave been interviewed and selected in the permanenr vacancy and RespondentBank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997before the labour authorities and they questioned the retrenchmeal as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

5. In thejadditional claim statement, the Petitioner contended that he was having been sponsored by cmployment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of pessenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously wich deliberate and artificial breaks . Therefore , the Respondenu/Bank is daty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menjal category , thus, the Respondent/Bank imposed total ban for his future employment.Even though there were sufficient mumber of vacancies in class TV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workinen with ulteriormotive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons. other than wait listed workmen according to their whims and fancies. Hence, the Petitioner prays that an wward may bepassed in his favour .

fi.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondem, wherein it is stated all عطا settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and bat under Section 18 (3 ) of the Act . As per recruitment rules of theRespondent/Bank, recruitment of class IV staft in the Respondent/Bank is in accordance with the instructions tald down under codified circulars of the Respondent/Bank. Even in the Writ Petitionbefore the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is false to allege that the settlements are contrary to the rights of the Petitioner .Hence, the Petitioncs prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration are :

(1) "Whether the desuand ofthe Petitioner inWait ListNo.458 for festoring the wait list of temporary messengers in the Respondent Bank and consequential appointment thereupon as temporary messenger is justified?"

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18 (1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent /Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore, they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars / guidelines issued by the Respondent/Bank to the effect that temporary comployees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days dues not arise at all . Further , they have invoked the relevant provisions of Chapter V A of the 1.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 250 and 2511 are very much applicable to the Petitioners who are retrenched messengers 5003 [ भाग -खण्ड ( ii) ]

भारत का राजपत्र अगस्त 4 , 2007 / श्रावण 13 , 1929

and are eligible to be reinstated, Learned representative for thePetitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that ChapterV-Aof the 1.D. Act providing for retrenclument is not edacted only for the benefit of the workben to whom Section 25F applies but for all cases of retrenchinent. Therefore, the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and endurveable right for appointment is untenable. It is further contended that on behalf of the Petitioner that Ex .W2, W3 and WB as well as Ex. MB which constitute /relate so the circular instructions of the Respondent /Bank issned from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . Ml and the averments ofMWI and MW2 and their testimonies during the cross-examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements. Further, Clause I of Ex. MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of "A, B & C is quite opposed to the doctrine of' last come first go' or first come last go and therefore, the categorization inClause is illegal . Clause I ( a ) of Ex . Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers, farashes, cash coolies, water boys , sweeреть etc. for absorption along with the other eligible categories of temporary comployees is not valid. Purther , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters, copyof which is marked as Ex.WR, Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / mstructions. In such circumstances , the absorption of casuals along with the eligible categorics is not valid .Therefore, these persons who were engaged by the Responden/Bank on casual basis should not be given permanent appointment in the bank service. Those caspals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have Dotbeen informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex .W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M 10 in this case . Those candidates under Ex, M10 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex .M10 was prepared, but it is mentioned in Ex, M10 thai id was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ext. ML, M3 and M4 respectively . But , when MWI bas spoken about the setlemeals, he deposed that settlement dated 27-10-86 was int included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except bis bald

statement . Further, according to MWI walk list under Ex. M10 was prepared ca 2-5-92 but there is no pleadingin the Counter Statement witaregud to this wait list. Further theHon'ble High Court has held in its onder dated23-7-99 inW.P.No.7872 of 1991 , which is marked as exhibli, in which it is stated that it is clear that the 1987 settement was conczarned with the temporary class IV employees who were paid scalewages as per Bipartite Settlement while the 1988 settlement dealt with daily wager inClass IV calegory who were paid wages daily on mutual agreement basis. In such circumstances, as rightly contended the Respondent are not justified and combined the list of candidates covered woder 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action andoubtedly amounts to violation ofArticle 14 of Constitution of India' Further, the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate atkampt to wriggle out the illegality committed or perpetrated by the Respondent/ Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex . M10 comparises of both messengerial and non- messengerial candidates .While the lamporary employees were appointed after due process of selection and were paid wages on the basis of industry wise settleme , it is not so in the case of casnals . Therefore, both belongsto two different and distinct categories . But, Ex. M3 provides for the same dorbs to the casuals as in the case of temporary employees in the matter of absorption. Therefore, it is violative of Article 14 and 16 ofConstitution of India . Therefore, the Petitioner contended that preparation of Ex. M1 namely wait list is not inconformity with the instructions of Ex.M2 and non - preparation of separate panels amounts to violation ofcircular. Secondly. it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994, Furthermore, Do wait list was released published even after the Court order in WMP No. 11932/91 in W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore , wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to amive at their respective seniority. From all these things , it is clear that Ex. M 10 has been prepared in violation of instructions andceased to have the credibility attached to the wirit list. Above all , Ex . M I was not produced at the time of conciliation proceedings held during the year 1997-98beld at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10before this Tribunal marking it as a confidential docuocat. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointinent that their appointment was in leave vacancy.Further , even before or after the settlement on absorption of temporary employees , the expression that 5004

THE GAZETTE OF INDIA: AUGUST 4, 2007/SRAVANA 13, 1929

[PART SEC. 3( її ) [

the of reference period and hence evidence of Respondent/Bank has no application to the Petitioner's case. The Petitioners have completed service 240days and more in a continuous period of 12 calendar monchs as enshrined under Section 25B and 25 of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/ Bank and they are entitled to the benefics under the provisions of LD . Act. It is further commended on behalf of the Petitioner that though some of the Petitioners in the connetted IDs have not completed 240 days , since the RespondentBank bus Dut taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actuallyworked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that the expression 'actually worked under the empinyer ' cannot mean tلمط those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of slatute, standing orders eve. " It is further. argued that calt letters produced by the Petitioner will clearly prove thar the Respondent/Bank has conduciend the interview and selected the temporary employees who have reported to have submitted their application forabsorption as per the bank's circular and therefore, their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements / lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they tre in age group of 40 to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

that hey were engaged in leave vacancy was used as a deviceto ake them out of the principal clause 2 (oo ) of the ID. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in cxistence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative ofthe Petitioner relied on the sulings reported in 1985 4 SOC201 H.D. SINGH V & RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as "badlies ' casuals or temporaries and po continue them as such for many years with the objectiof depriving them of the status and privileges of permanent workinen is illegal. " Learned representative further contended that Ex . M 10 wait list has notbeen prepared in accordance with principle of seniority. In the legal sense , since the selected candidates with longest service should have priority over those whojoined the service leuer und therefore, the wait list under Ex . М10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/ Bank has nоt асted in acontdance with the law and the spirit of the settlement, but in otter violation and in breach of it. Though clause 2 (e) of Ex , M4 states that candidates found suitable for permanent appointment will be offered appointment against existing future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he willbe deemed to have refused it and the name shalt stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document show how he has arrived at the seniority and till date , it is a mystery as to who thar senior was and there is no documentary evidence in support of the averment and alsd for the averment of MW1 . Therefore , the terruinarion of the Petitionce who was in regular service of the Respondent/Fank is arbitrary , mala fide and illegal and theRespondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees. Though the Respondent Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75before Regional Labour Commissioner ( Central), Hyderabad, it is neither a 18(3) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bankwitich says only with regard en modification of Ex. Ml to M4 made in terms ofEx M6 . Though the Respondent/Bank prodnood Ex . M7 and MJ1 interim orders passed by High Court of Madras in WMP No.11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner . Further , though the Respondent/ Managerment hasjexamined two witnesses , the deposition of management witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . Mi toM5 . Above all , though the Respondent/Bank has referredto voluntary retirement scheme. In the RespondentBank itwas

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference madeby the Government itself is Dot maintainable in view of the facts and circumstances of the case . The Pedtioner in this case and the Petitioners in the onnnected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further . the Petipioners are estopped from making claim as they had Bccepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18 ( 31 of the D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive . Further , they have concealed implemented only in the year 2001 and it constitutes post 5005

भारत का राजपत्र अगस्त 4 2007 / श्रवण 13 , 1929

[ भाग 11 खण्ड अⅱ) ]

willbe binding on all workmen of the establishment.Even in case ofthe first category , if the settlement was reached with a representative union of which the contesting wurkmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it raust be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlemeal is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable." Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation inwhich the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further , the argued that no uoion of the bank has questioned the settlement and in such circumstances , it cannot be said that it is nou hinding on them and he is estopped from disputing the

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? " The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full hack wages ete. Hence , the Petitioner's contenrion against the reference made by the Govt. is not valid. Further, in this case, the Court has to see whether the restoration of wait list can be made as contended hy the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statemeal

12.But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY. KOLLAM MULA HOTEL AND SHOPWORKERS' UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " merewording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The Responcient Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that heworked astemporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement andaccordingly he was wait listed and therefore, the Penitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Purthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied com the rulings reported in 1991 11323 ASSOCIATED GLASS INDLISTRIES LTD. VS. INDUSTRIAL TRIBUNAL A-P . AND OTHERS wherein under section 12 ( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workinen resigned from the jub and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has beld that" in the absence of plea that the settlement resachert in the course of conciliation is vitiated by fraud , misrepresentation or enercion, the settlement is binding on the workmen. " Learned counsel for the Responden further relied on the rulings reported in 1997 TI LLJ 1189 ASHOK AND OTHERS VS. MAHARASIITRA STATE TRANSPORT CORPORATION AND OTHERS wherein the DivisionBench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on alt workmen of the establishment, even those who belong to the minority umion which had objected to the same . To that extent, it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual eamployee or a sminority un from scutthing the settlement" It further beld that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration " Learned counsel for the Respondeat further relied on the rulings reported in 1997 1 LLJ 308 K.CP. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under section 18 ( 1 ) of the I.D. Act and ( ii ) those arrived at in the course of conciliation proceedings under section 18( 3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the soonad category made with a recognised majoriry union has extended application as it 5006

THE GAZETTE OF INDIA : ATIGUST 4, 2007 / SRAVANA 13. 1979

PART I-Ser.. 30 ) ) workroan; to hardship involved in moving the machinery again" . 11 further held that "the Tribunal should look intu the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead if ne lusmę to answer the reference on merits " . Furthes , he argued that the Tribunal has got power to go into the question whether the Petitioner is in be reinstated in service out for which he relied on the rulings reported in 1996 LAB 1C 1564 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL. TRIBUNAL & ORS , wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go bebind the terms of reference , but that clues not mean that it cannot look into the pleadings of partics. "He also retied on the rulings reported in 1998 F.AB IC: 1507 A. SAMBANTHANVS. PRESIDING OFFICER, LABOUR COURT.MADRAS , wherein it has been beld that " in has been repeatedly held that the Labour Court should not attempt tarasider the order under telference in a technical manner of a pedantic manner , but should consider the order of reference in a fair and reasonable manner " . He also argued Ihult in Express Newspapers (P) Ltd.'s case reported 10 AIR 1993 SC569 the Supreme Court has held that " the Tribunal Das jurisdiction to consider all incidental matters also and the order of reference should not he construed in die mannerwhich would prolong the industrial adjudication. The Labour Coun is expected to decide the real nature of disputes between the parties and with that object in view, itshould konsider the order of reference in a fair and reasonable manner , though the order of reference is nor happily framed nor was it framed to the high expectationof the Labour Court " . Relying on all these decisions , the representative for the Petitioner argued that though in the reference. it is not coentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank andtherefore , this Tribunal can look into the pleadlings uf the Peritioners and can decide whether the Petitioner is entitled ro be reinstated in service as alleged by him and whether be is entitled to the back wages as alleged by him. Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without aby substance.

13. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to bim or 101 ? But , I find that the settlement was validly entered into berween theRespondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent Bank, I find the Petitioner is not entitled in question the scalenwni

14 Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V. VUEESH wherein the Supreme Cou

has held that " the only question which falls for determination in this appeal is whether a candidate whose nanse appears in the select list no the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy" . In that case , pruning, ni select list an reduction in Faber of vacancies was made in view ofthe impending absorption of steam surplus staff and a policy decision has been inken to reduce the number of vacancies and consequently , a certain number ul bottom persons were removed from the select list and the remaining selectees were given appointments according to their chomparative merits. In which , the Supreme Court has held that " in such iTcumstances , denial of appointment to the persons remuved from the select list is not arbitrary and discriminatury " . He further relied on the rulings reported in 1997 6 SC: C: 544 SYNDICATE BANK & ORS . Vs. SHANKAR PALI. AND OTHERS wherein the Supreme Court has held that " hy ils letter dated 7-2-87 the hank informed the Responiems that the panel was valid for пле yeur only and that inclusion of their names in the pane? was ant to under un them any right to seek permanent appointment in the services of the hank . Considering the nhjoct with which the panel was prepared and the fact thar Itwas a yearly panel expiring on 16 2-48, we are ofthe nріліюю that the Resporalene did not get any right because of inclusion of theirnames in the said panel for pemerarienl absorption in the services of the bank Whatever conditional right they had come to an end with the exp of the panel . The claim of the Respondents as contained i the W.P. was thus , misconceived and therefore, the learned Single Judge and the Division Reneh, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively": He further relied on the rulings reported in 1991 3 SCC: 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has held that " candidates included in meri list has a indefeasible right to appointment even if a vacancy exists " and relying ris all thesedecisions. Icarried counsel for the Resporiulent contended that since the Petisinner las nonght to question the wair list and since there is malla fide on the part of the Respondent / Bank in preparing the wait list . it cannot be said that preparation ot wait list was made with mata fide motive. Under such circumstances , after the expiry of the date namely 31 3.1997 , the Petitinner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied in the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA ANT) ORS . VS. PLARA SINGHAND OTHERS wherein the Supreme Court has held that "now coming to the direction that all those alhoe temporary employees who have continus for more than a year should he regularised, we find ex difficult ro sustain it . The direction Jhas been given withour reference to the existence of a vacancy The direction in effect means that every adhu temporary employee who has been continued for one year should be regularised even though (a ) no vacancy is available for him which means creation of a vacancy; (b ) he was ml sponsored by Farpluyment Exchange ixir was he 5007 भारत का राजपत्र अगस्त 4, 2007 / श्रावण 13 , 1929

[भाग -खण्य 3 (ii) )

appointed in pursuance of a notification calling for concept of retrenchment therefore, cannot be stretched to such an extent as to cover these employees. Since they are only daily wage exmployees and have no right in the posts, their disengagement is not arbitrary". He further relied on the rulings reported in 19943 LLF (Supp) 754wherein the RajasthanHigh Court has held that "Under Section 250 of theLD. Act retrenchment procedure following principle of 'last come - fust go' is not mandatory bat only directory. on sufficient grounds shown, the camployer is permitted to depart from the said principle retrenching seniors and retaining jumians. Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent Bank.Anyhow, if the Petitioner has shown mything, the Respondeau /Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitionc . In such circumstances, the prayer for reinstatement in the services ofRespondentBank cannot be given to the Petitioner and therefore, the claim is to be dismissed with corta.

15. Learned Senior Advocate further argued at even in recent decision reported in 2006 4SCC 1 SECRETARY. STATE OF KARNATAKA VE. UMA DEVI , the Supreme Court has beld that "merely because a temporary employee or a casual wage worker is continued fox tique beyond the term of his appointment, he would not be entitled to be absorbed in regular service or madé pérmanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant roles . It is not open to tiseCourtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment, do not acquire any right." Further, it has also held that " it is not as if, the person who accepts an engagement eithez kamporary or casual in nature is not aware ofhis employment. He accepts the employmcat with open eyes . It may be true that he is not in aposition to bargain -not at arms length since he might have been searching for sовк сотрlоушелt, so as to elke out his livelihood and sucepts whatever he gets . But on that ground alone; it would not be appropriate to jettison the constitutional schame of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed shouldbe directed to be continued permanently.By doing so , it will be creating another mode of public appointmeat which is not permissible." Purther, the SupremeCourt while laying down the law , has clearly held that unless the appointment is in tertos of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.....It has to be clarified that merely becauые я temporary employce or a casual wage worker is continued for a time beyond the terms of his appointment , he would not be entitled to be absorbed in reguler service or made permanent merely on the strongth of such contineance, if the originul ppointment was not made by following a dne applications which means he had entered by a back door, (c) hewas not eligible mad qualified for the post at the time of his appointment ; (d ) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the merc continuation of an ad -hoc employee for one year , it camot be presumed that there is need for regular post. Such a presumption may be justified only when such continuaавсе extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other. Just because in one case , a direction wits given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant cincumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but ajudicious one. From this, the impogned directions must be held to be totally untenable and unsustainable. Thus ,the Supreme Court set aside the orders oflower Courts. He further relied on the decision reported in 1997 USOC 1 ASHWANI KUMAR AND OTHERS V & STATE OF BIHAR AND OTHERS wherein the FallBench of the Supreme Court has considered the above regularisation of appointment in excess ofsanctioned posts. "So far as the question of confirmation of these camployees whose entry itself was illegal and void is concerned, it is to be moved that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an imegular manner or on ad- hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy. question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby. Voder these circumstances , there was no pocasion to regularise them or to give them valid confirmation . Tise so called exercise of confiumbing these employees , therefore, remained a nullity ." Therefore, tearned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regula vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent/Bank. Further, he relied on the rulings reported- in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that "they are temporary employees working on dailywages . Underthese circumstances , their disengagement from service cannot be construed to be a retrenchmeit under the LD. Act. The

32180407-25 5008

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13. 1929

[PART I-Seckii} ]

fade in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or other inducements. Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and sloce It is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cammot claion for reinstatement or regularisation in services of the Respondent Bank .

18. Further , the representative for the Petitioner coruended that in a similar cases , this Tribunal bad ordered for reinstatement with hack wages and these disputes are also similar in nature and hence, the Petitioners are entitled for the same relief.

process of selection as envisaged by relevant rules . Purther, inCDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that "regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation of in employce upon the expiry afpurported period ofprobation would not arise." Further, inCDJ 2006 SC395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court as heldthat "it is not disputedthat the appointeen of the Respondent was not in sanctioned post . Being a 'State within the meaning of Article 12 of the Constitution of lactili, the Appellant for the purpose of recruiting its bmployees was bound to follow the recruitment rules. Any recruitment made in violation of sock rules as also in violation of constitutional scheus enshrined under Article 14 and 15 ofthe Constitution of India would be void in law. " Further , in2006 & LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VLS.C. PANDEYwherein the Supreme Court hum beld that "only because an employee and worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The SupremeCourt also held that "the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt in the wake of prevailing marker economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore."

19. But, I find since the Supreme Court has held that temporary employees are not intitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case ronst be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner . Point No. 2:

The next point to be decided in this case is to what relief the Petitioner is entitled?

20. In view of my foregoing findings that the Petitioner is a temporary employce and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs.

21. Thus, the reference is answered accordingly .

(Dictatedto the P.A. , transcribed and typed by him, corrected and pronounced by me in the open count on this day the 31st Jamвагу. 2007. )

Witnesses Extined: K. JAYARAMAN, Presiding Off

For the Petitioner : WWI Sri M. Ashok Kumar WW2 Sri V. S. Elrambaram 16 Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner bas notbeen appointed for regular post nor has he been appointed inin regular vacancy or sanctioned post, the Petitioner is not entitled to chém regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Blank and Federation and since they have not questioned thع want list preparedby the Respondent/Bank, they are not titled to dispuse the same and they we estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon is temporary messenger as per wait list. Under such circumstances, after expiry of the period mentioned in the settlements which were subsequently mmmended by settlements, the Petitioners cannot now question either the prepuption of wait list or number allotted to them.Under such circumstances , it cannot be questioned by the Petitione

Forthe Respondent : MWI Sri C. Mariappan MW2 Sri C. Ramalingam

Documents Marked:-

Ex. No.Date

W1 01-08-88 Description Xerox copy of the paper publication in daily Thanthi based on Ex . MI .

17. find much force in the contention of the learned counsel for theRapondent. Though in the Claim Statenvent the Petitioners harve made so many allegations with regard to preparation of wait list and also settlements catered bo between the Respondent Bank and Federation , at the time of reference, they have not questioned the settlement nor the mimber allotted to each individual is the wail list Further, the Petitioners have not questioned the settlement and they lave not alleged that settlement ou not a bonu

W2 20-04-82 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx.Mi.

[ भाग -खण्ड 3 (ii)]

W3 24-4-91 Хегох copy of the circular of Respondeat/Bank to all Brang regarding absorption of dally wagon in massenger vacancies

W4 01-0591 Xerox copy of the advertisment inThe Hindu daily wages based on Ex . W4.

W5 20-08-91 Хагох copy ofthe advertisement in The Hindu extending period of qualifying service to daily wa

W6 15-03-97 Χατος copy ofthe circuler letter ofZonal Office, Chemai about filling up of vacancies ofmasнент ровка ד 25-03-97 Хетох copy of the circular of Respondent/Bank to all Branchga regarding indentification of vacancies and filing them before 31-3-97.

Xerox copy of the instructions in Reference Book on Staff about casuals not to be engaged it office/ branches to do meepsengrial work.

17-08-88 Xerox copy of the mavice certificate issued by Perianet Deanch

₩10 05-01-96 Xerox copy of the service certificate issued by Chetpet Brunch.

W11 12-01-96 Xerox copy of the service certifi issued by Chintadripat Brumpa .

₩12

5009

भारत का राजपत्र अनस्व 4 , 2007 / बापण 13 , 1929

W19 31-03-97 Xerox copy of the appointmeat order to SariG.Pandi,

Feb. 2005

W20

Xanax copy of the Pay Slip of T. Seitar forthe mouth of February 2005 wait list No.395 of Madurai Circle.

21 13-02-95 Xerox copy of the Madurai Module Circular Letter about Engaging Banporary employes from the proci of wait list.

₩22 211-92 Xarux copy of the Head Office circular No. 28 regarding Norms for unction of massenger staff.

W23 9-7-92 Xaroz copy of the minuts of the Bipritte meeting.

24 09-7-92 Xerox copy of the settchmeat betwee Respondnet/Bank and All India Staff Bank of India Staff Federation for Implementation of nocnes- creation of part time general attendents.

W25 07-02-06 Xizox copy of the local Head Office circular about Conversion of part time employees and redesignate them as General Attendants,

W26 31-12-85 Xerox copy of the local Head Office circular aboutAppointment of tempoску employees in subordinate cades.

Ex. No. Dete

Xerox copy of the administrative guidelines in Reduce Book on Staff Matters isaned by Respondent Bank regarding recruitment to apbordinate cace & service conditions.

Xerox copy of the Reference Book on StaffMatters Vol. In comalidated upo 31-12-95,

W14 06-08-57 Xerox copy of the call letter frora Madurai Zonal Office for interview of messenger poet-V. Maralikaonas

W15 06-03-97 Xerox copy ofthe call letter from Madhuri Zonal Office for interview ofmessenger post-K. Subbaraj ,

W16 06-03-97 Xarxxx copy ofthe call letter from Madurai Zonal Office for interview of messenger post-J.Velmungan

W17 17-05- Xerox copy of the service particulars -J.Velumpn.

W18 26-03-97 Keros copy of the letter advising selection of part time Menial- G.Pandi

Description

MI 17-11-17 Хаток copy of the acttlement, For the Respondon

M2 16-07-88 Хатах сopy of the settlement 27-10-88 Хотол сopy of the settlement

09-01-91 Χετος copy of the settinmeat

30-07-06 Хетох сopy ofthe settlement .

46 09-06-95 Xerox copy of the minutes of concibation proceedings.

28-05-91 Xerox copy of the order in W.P. No.7872/91.

MIS 15-06-98 Хегах copy of the order in Q. P. No.2787/97 ofHigh Covat ofOrlesa, MD 10-07-99 Хатох copy of the order of SupremeCourt inSLP No. 3082/99.

MIO NI Xeroz copy of the wait list ofCheamai Module

M11 25-10-99 Xerox copy ofthe order passed inCMP No.16289 and 16290/99 in W.A. No. 1893/99.

PART I-SEL. ( 0) 5010

THE GAZETTE OF INDIA: AUGUST4, 2007 /SRAVANA 13, 1929

नई दिल्ली, 20 जुलाई , 2007

the dispute on its file as COID No. 125/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the Constitution of this COTT -cum - Labour Court , the said dispute has been transferred to this Tribunal fur adjudication and this Tribunal has murobered it as J.ID.No. 226/2004.

2. The Schedule mentioned in that order is as follows:

का.आ. 2185 , औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरण चेसई के पंचाट ( संदर्भ संख्या 226/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ मा ।

[सं. एस-12012/435/98- आईभार ( बी-1) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the20th July,2007

"Whether the demand of the workınan Sam R. Chengalvarayan , wait list No.375 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ? "

3. The allegations of the Petitioner in the Clam Statement are briefly as follows:

5.O. 2185.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Govemment hereby publishes the award (Ref. No. 226 2004) of the Central Govemment, Industrial Tribun Labour Court, Chennai as shown in the Annexure in the Industrial Disparte between the management of Stale Bank of India and their workmen , received by the Central Governmen on 20-7-2007.

[No. L- 120] 2/43598- IR (B - T)] AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, CHENNAL

Wednesday, the 31st Jumary ,2007

PRESENT

Shr K. JAYARAMAN, Presiding Office Industrial Dispute No. 226/2004

[Principal Labour Court CGID No. 125/99]

(In the matter of the dispate for adjudication under clause ( d) of sub- section ( 1 ) and sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947), between the Management ofState Bank of India and their workmen)

BETWEEN

: Party/ Petitioner

Sri R. Chengalvarayan

AND

: Party/ Management

TheAssistant General Manage, StateBank of India , Z.O. Chendai .

APPEARANCE

For thePedtioner

: SriV.S. Elkenbarn

Authorised Representative

: M/sK.S. Sundar,

For theManagement

Advocaten

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class TV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Mint Terminus branch from 2-2-1982. The Petitioner was orally informed that his services were no more required . The non-employment of the Petitioner and others became subject- matter before Supreme Court in the form of Writ Petition filed by State BankEmployees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent / Bank. in addition to its counter , filed a copy of seulement under section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Stall Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied crmployment after 1985 86were classified in the settlement was under consideration once again and they classified the worknen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held invugh advertisements . The Petitioner also suhmitied his application in the prescribed formal through Branch Manager of the Mint Terminos branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. Bart; they have not informed the result of interview and also with regard to appointment . But , the Petitioner wая informed orally to join at the branch where he initially worked as a class IV entployee. From 2-2-1982, the Petibune has been working as a termporary messenger and some times perfonning work in other branches also . While working. on temporary basis in Ayanavaram branch , another advertisement by the Respondent /Bank was made regarding casual workers who were reported tobe in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-1997 that his services are not

required any more and he need not attend the office from 1. The CentralGovernment Ministry ofLabour, vide Order No. 1-12012/435.98- IR (B-1 ) dated 11-2-1999 has referred thus dispute earlier to the Tamil Nadu Principal Labour Comprt, Chepnal and the said Labour Court has taken 501L

भारत का रानपत्र अगस्त 4, 2007/ 0 ण 13, 1929

| भाग II-खण्ड ( ⅱ) ]

1-4-1997 . Hence, the Petitioner raised a dispute with regard to his non-comployment. Since the conciliation ended in failure . the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Peritioner, he has made a fresh representation to GovIL reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-1997 and to regularise him in service in due course. The RespondentBank took op 20 unreasonable stand that the service and the mumber of days worked by Petitioner were treated as of no consequence , since according to the Respondeat/ Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and mamber of days worted by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Rank before the conciliation officer. Therefore, theRespondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Section 250 & 25H of the LD . Act . The erroination of the Petitioner is against the provisions of Para522(4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list bas been prepared and the RespondenuBank has been Regularising according to their whim and fancies . The Respondent/Bank has also not observed the instructions regarding grams of increments, leave, medical benefits etc. 10 the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with aال amendant benefits.

when their casewas espoused by StateBank of India Staff Federation which resulted in five settlements dated 17-11-1987,16-07-1988,07-10-1988,9-1-1991 and30-7-1996. The said settlements became subject matter of concillation proceedings and minnes were drawn under section 18 (3 ) ofLD. Act. In terus thereof, the Petitioner was concidend for permanent appointment as per his cligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 375 in wait list ofZonal Office, Chennai , So far 357 wait listed tamponiry candidates, out of 744 wait listed temporary comployees were permanently appointed by Respondent/Bunk.It is false to allege that the Peritioner worked as a scoтросаку messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drown as per retrenchment provisions referred to above, cannot turn around and claim appointment. Such of those temporary employees who were appointed were engaged for more numaber of days and hence, they were appointed. Under the settlement, employees were categorised a B and C. Considering their temporary service and subject toother cligibility criteria, under category (A) the temропагу employees who were engaged for 240 days were tobe considered and under category ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar mondas and under category (C ) lise temporary employees who have completed 30 days aggregate lemporary service ip any calendar year alker 1-7-75 or mimimam 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered. As per clause7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upin 31-12-1994 . The Petitioner has no valid and enforceable right for appointment , The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of744wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listed at 375he was not appointed. The said settlements werebona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any umion so far and the settledis of hank bevel settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Statne to Workmen ) Act, 1981 does not apply to Respondent/Bank and this Tribunal hu an jurisdiction to entertain such plea. It is not correct to say that docurrents apdridentity of Petitioner was verified before the Tetitioner was engaged. It is also not carectto 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . fur adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service. Hence , the question of regular appointment/absorption does not arise . The engagerment of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18(1 ) and 18(3 ) of LD . Act in lien of provisionς οι law, retrenchiment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with rior motive. The Petitioner concealed the material facts thatbe was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claistring permanent absorption and 5012

THE GAZETTE OF INDIA: AUGUST 4, 2007/ SRAVANA 13 , 1929

say that the Petitioner was discharging the work of permanent rpessenger . As per settlements, vacancies upło 31-12-94ware filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of dailywages/ casual labour. Further , for circle of Chennai wait list of daily wages was not finalized and hence not publishedand there is onlyone wait list for the appointment of tempoтагу employees. After the expiry of wait list , the Petitioner has Do claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with DOSIS.

S. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent Bank is duty bound to regularise the services of the Peridoner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the RespondeorBank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in enial category , thus , the Respondent/ Bank imposed total ban for his future employment . Even though there were sufficiat number of vacancies in class TV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies. Hence, the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bankwith the State Bank of India Staff Fertertion were under section 18( 1 ) of the Act and not under section 18 (3 ) of the Act. As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in theRespondentBank is in accordance with the instructions laid down onder codified circulars of the Respondent/ Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence, the Petitioner prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration are:

(i) "Whether the demand of the Petitioner in Wait List No. 375 for restoring the wait list of Lemporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

PART I-Sac- 3( ii) ] (u) "To what relief the Pepitioner is entitled?" Point No. 1 :

B. In this case , on behalf of the Petitioner it is womended that the Petitioner in this case and the PetitioneES in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having heen selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent /Bank io pertuanent vacancies in subordinate cadre on temporary basis.After engaging them intermitteally for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of theworiamen concerned and while the maller was pending in Writ Petition No. 542 ( Civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/ Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that theyhave been interviewed andselected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank alter 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other auteodadı benefits.

9. On behalf of the Petitioner , it is coolended that these Peritinners were recruited as temporary comployees an the Respondent/Bank under the guidelines and circulars issued by the Respondent /Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any seulement in this regard is redundant and in any case, the Petitioner is not bound by settlement under section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondeot/ Bank bas stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was pot in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank in the effect that temporary employees at branches / offices are not allowed to be in service exceeding 200 days , bence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter VAM the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 250 and 25H are very much applicable to the Petitioners who are retrencbed messengers 5013 [ भाग 3 ( ii) ]

भारत का राजपत्र अगस्त 4 , 2007 / श्रवण 13 , 1929

and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-A of the ID. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applica bur for all cases ofretrenchment. Therefore, the application of Section 25H cannot be restricted only to one category of retrenched worimen . Therefore, the contention of the Respondera/Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex , W2, W3 and WR as well as Ex . MB which constitute/ relate to the circular instructions of the Respondent/Bank issned from time to time in consection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study ofEx.Ml and the averiments of MWI and MW2 and their testimonies during the cross -examination will clearly show how the bankhas given a raw deal to the Petitioner from the beginning linking his futurewith the settlements . Further,Clause I ofEx. MI deals with categorization of retrenched temporary employees into 'A, B and C " , but this categorizationof'A, B &C' is quite opposed to the doctrine of " last come first go' or 'first come last go ' and therefore, the categorization in Clause I is illegal. Clause I (a) ofEx.MI provides an opportunity to persons who were engaged on casual basis and allowed to work in learve/ casual vacancies of messengers , farashes, cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary comployees is not valid, Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex.W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's Circulars/ instructions . In such circumstances , the absorption ofcasuals along with the eligible categories is not valid. Therefore , these persons who were engagedby theRespondent/Bank on casual besis should not be given permanent appointment in the bank service. Those cruals ware gives more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been inforned about this amendment which includes casuals affecting their interest nd chance. Further , as per instructions in Ex .W2 four types ofwaiting lists have to be prepared. But the Respondent Bank bas alleged to have prepared only one wait list for each module as perEx M 10 in this case . Those candidates under ExMi were found suitable for appoint messengers and sweepers . Even MW 1 is unable to sayas to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marited as Ex ML, M3 and M4 respectively.But, whez MWI bas spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in theMadras circle since the High Court order is there, but he has not produced any document in suppost of the so called non-

inclusion except his bald statement Further, according to MWI wait list under Ex.M10 was prepared on 2-5-92but there is no pleacting in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in itsorderdated 23-7-99 in W.P.No. 7872 of 1991 , which is marited as an exbibit, in which it is stated that ' it is clear that the 1987 settlement was curceamed with the teтровашу class IV ermployees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement hasis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they furmed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violationof Article 14 ofConstitution of India. Further , the averment of MWI and the statements in Counter Stalement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bytheResponden /Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as perdeposition of MWI wait list underEx .M10 comprises of both messengerial and non - messengerial candidates. While the semporary employees were appointed adez due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals. Therefore, both belongs to two different and distinct categories .But, Ex . M3 provides for the same norms to the casuals as in the case of temporary comployees in the mo ofabsorption .Therefore , it is viclative ofArticle 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex.M 10 namely wait list is not isconformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular. Secondly , it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , Do wait list was released / published even after the Court order in WMP No.11932/91 in W.P.No. 7872/91 directing the RespondenuBank to release the list of successful candidates pursuant to the first advertisement published inThe Hindudated 1-8-88. Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility artachedto the wail list. Above all, Ex . Ml was not produced al the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even beforeor after the settlement on absorption of temporary employees, [ PART I SEC .3 (i ) ) 5014

THE GAZETTE OF INDIA: AUGUST 4, 2007 / SRAVANA 13.19 コリ

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 days and more in a coprinuous period of 12 calendar noητης as cashrined under Section 25B and 25F of the Inchustrial Disputes Act , therefore, their retrenchment from service is illegal and against the mandatory provisions of Section25 and therefore , they are deemed to be in continuouь веrvісе ofthe Respondent /Bank and they are entitled to the benefits under the provisions of I.D. Act .It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Surdays and paid bolidays as days on which the Petitiomers have actually worked and hence, they have also completed 240 duys in a period of 12 calendar months . Ile also retied on the rulings reported in 1985 Π LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VI. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that the expression 'acrualty worked uncler the employer ' cannot mean that those days onlywhen the workmen worked with hammer, sickle or pon bu must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contraer of service or by compulsion of stalule, standing orders etc. It is further , argued that call letters produced by the Petitioner with clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported lo bave submitted their application for absorption as per the bank's çirçular and therefore , their retrenclument is illegal . In all these cases , the Petitioners were in employment as sub stall in early 1980s but were denied further engagemen on account of settlements /lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar mooths and they are in age group of 40 to 50 years and for no fault of theirs , they find then selves seranded in life midstream . They have also not gainfully employed . In such circumstances , thus Tribunal has to pass am award in ther Favour.

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by theGoverament itself is not maintainable in view of the facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service. Hence , the question of regular appointment /absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estupped from making claint as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18 (3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive . Purther, they have concealed the expression that they were engaged in leave vacaали-у was used as a device to take them out of the principal clause 2 ( 04) of the J.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuons and though thePetitioner has performed the duties continuouslywhich is still in existence , the categorisation as such is bor valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH VA . RESERVE BANK OF INDIA AND OTHERS wherein the Sopreme Court has held that " to employ workmen as badlies casuals or temporaries and to continue them as such for many years with the object ofdepriving them of the status and privileges of permanent workmen is illegal . " Leamed representative further contended that Ex. M10 wait list has bol been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service latter and therefore , the wait list under Ex. M10 which has beco drawn up is contrary to law and alsu bad in law . Thus, the Respondent/Bank has not acted inaccordance with the law and the spirit of the settlement . but in utter violation and in breach of it . Though clanse 2(e ) of Fx . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/future vacancy anywhere in module or circle and in case, a dandidate fails to socept the offer of appointment or posting within the prescribed period, be will be deemed sohave refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Responden /Bank has not produced any docuтель to show how he has arrived at the seniority and till dace, in isa mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the avamear of MW) . Therefore , the termination of the Petitioner who was in regular service of the Respondent Bank is arbitrary, mala fide and illegal and the Respondeat Bank has not acted in accordance with the terms of settlement on absorption of temporary employees .Though theRespondent/Bank has produced Ex . M6 which alleged tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ), Hyderabad, it is neither a 18(3 ) settlement nor 12(3) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms ofEx . M6 . Though the Respondent/Bank produced Ex . M7 and M1 ) interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner. Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are markod as Ex . M3 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 5015 [ भाग खष्य (ii) ]

भारत का राजपत्र अगस्त 4, 2007 / षण 13 , 1929

application as it will be binding on all wonnen ofthe establishment. Even in case of the first category, if the settlement was reached with a representative anion of which the conteming workmen were members and ifthere was nothing unreasonable or unfair in the terms ofthe settlement, it must be binding on the contesting workльыл also." He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENCHNEERING INDUSTRIES LTD. VE STATE OF RAJASTHAN AND OTHERS whancin the Supreme Court has held that "sentlement is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentunion or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispute which an appropriate Govt may refer foradjudication after examining the allegations as there is an underlying assumption for the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contends that though it is alleged that they are not parties to the seatlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the sume .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other commected disputes is 'whether the demand of the workman with wait list No. given for restoring the wait Hist of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?" The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with foll back wages etc. Hence, the Petitioper's contention against the reference roade by the Govt. is not valid. Further, in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement

12.But , as against this on behalfof the Petitioner it is contended that mere wording of reference is not decisive in the thatter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOPWORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that "mere wording of reference is not decisive in the matter of tenability ofa reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to frad opt some techumic defects in the wording of reference , subjecting the poor the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed asbe was positioned down in the seniority. The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Baink and the federation 'were bonafide which were the only workable solutionand is binding on the Petitioner. The Potitioner accepted the setchervent and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on berulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD. & INDUSTRIAL TRIBUNALA.P. AND OTHERS wherein under Section 12 ( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised aplea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that "in the absence of plea that the sendement reached in the course of conciliarion is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workamen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LL 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT.CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrivea at in the course of the conciliation proceedings with a recognised majority union will ise binding we all workmen ofthe establishment, even those who belong to the minority waion which had objected to the same. To thas extent, it departs from the ordinary law ofcontracts, the object obviously is om uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage ur individual employee or a minority unionfrom scuttling the settlement. "It further beld that "there may be exceptional cases, where there may be allegations ofmata fides,fraud or even corruption or other inducements. But, in the absence of such allegationes, a sentement in the course of collective bargaining is entitled to der weighs and consideration." Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 306 K.C.P. LTD . VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that "settlements are divided into two categories namely (1) those arrived at outside the concilicaton proceedings under section 1811 ) of the 1.D. Act and ( it ) those arrived at in the course of conciliation proceedings ander section 18(3). A settlement of the first category has limited application and binds merely parties to it and settlement ofthe second category mude with a recognised majority union has extended

3219 CM07-25 5016

PART I- Sec . 3 ( ii) THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANA 13,1929

;

workman to hardship involved in moving the machinery again." It further beid that "the Tribunal should look into thepleading sad find out the exact mature . of pleading of thePetitioder to find out the couact nature of dispute instead of refusing to answer the reference on merits. " Further, he argned that the Tribunal has got power to go into the questionwhether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1604 VANSAGNATHAN ORIENT PAPER MILLS Ex INDUSTRIAL TRIBUNAL & ORS. wherein the Madhya PradeshHighCourt has held that "the Tribunal camot go behind the lerms of reference, but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VI. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been beld that " it bas beto repeatedly held that the Labour Court should not attempt to consider the puler under reference in a technical manner or a pedantic manner, but should consider the onder of refience in a fair and reasonable maner." He also argued that in Express Newspapers P. Lad. case reported in AIR 1993 SC 569 the Suprente Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labon Court is expected to decide the real nature of disputes betwaze the parties and with that object in view, it should consider the order of reference in a fair and reasquable mammer , though the order of reference is not happily fraped nor was it framed to the high expectation of the Labon Court ." Relying on all these decisions , the representative for the Petitioner argued that though in the reference, i is not mentioned that whether the retrenchment is valid or not, from the plaadings it is clear that the Petitioners have been retrenched from the Respondent Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whurther the Petitioner is cutitled to be reinstated in service as alleged by him and whether be is entitled to the back wages as allegedby him . Therefore , the argument advanced on the side of the Respondent than it is beyond the scope of reference is without any substance.

13. find some force in the contention of the representative for the Petitioner. Therefore, I find this Tribunal is entitled to go into the question whether the relief prayed for by tise Petitioner can be given to him or not? But, I find that the usttlement was validly cutered into between theRespondent/Banir and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

14. Then the learned counsel for the Respondent contendedthat since the Petitioner mentioned that he has beenkept in the wit list and the time of wait list has been exhausted, now the Petitioner cannot question that h ع should be reinstated in service and be relied on the rulings. reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS.K.V. VIJEESH wherein the SupremeCourt has

held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service io an existing or a future vacancy. " In thai case , pruning us select list on reduction in number of vacancies was made in viewof the impending absorption of stcam surplus staff and a policy decision has been taken to reduce the mumber of vacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining sclecrees were gived appointments according to their comparative rocrits . In which , the SupremeCourt has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 19976800584SYNDICATEBANK & ORS VS. SHANKAR PAUL AND OTHERS wherein the Supreme Court hasheld that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearty panel expiring on 6-2-98, we are of the opinion that theRespondents did not get arty right because of inclusion of their names in the said panel for permanent absorption in the services of the back . Whatever conditional right they had come to an end with the expiry of the panel. The claim of the Respondents as contained in the W.T. was thus , misconceived and therefore, the learned Single Judge and theDivision Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SOC 47 SHANKARSAN DASH VS. UNION OF INDIAwherein the Supreme Court has held that "candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent comended that since the Petitioner has no right to question the wait list and since there is no mala fude on the part of theResponden Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide mative. Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further, he relied on the ralings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . VS. PLARA SINGH AND OTHERS wherein the Supreme Court has held that "now comingto the direction that all those ad hoc temporary employees who have continued for more than a year should he regularised , we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hon/ temporary comployce who has been continued for one year should be regularised even though ( a) no vacancy is available for hirm which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a optification calling for !

5017 [ भागखण्ड (ⅱ) ]

भारत का राधापत्र : व्अगस्त 4, 2007. 1929

LL much in extent as to cover theac employees. Since they are coly daily wage employees and have no right to the posts, theirdisengagement is not arbitricy. " He further pedied on the rulings reported in 1994 3LLJ (Supp ) 754wherein the RajasthanHigh Court las held that "Under Section 25G of the I.D.Actretrenchment procedure following principle of "but come- first go ' is not mandatory but only directory , on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors. Though in this case, the Petitioner bas alleged that his juniors have been made permanen in banking service, he has not established with any evidence that his juniors weze made permanent by the Respondent/ Bank. Any bow, if the Petitioner has shown mything, the Respondeat/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petition . In such circumstances, the prayer for reinstatement in the services of Respondent/Bmk canot be given to the Petitioner and, therefore, the claim is to be dismissed with CORDS.

applications which can be had entered by a back door (c) he was not eligibleand qualified for the post at the time ofhis appointment ( d ) his record of service since bis appointment is not satisfactory. These are the additional problems indicated by us in para 12which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of anod- hoc employee for one year , it camot be presumed that there is need for regular post . Such a presumption may be justified only wilen such contimaance extends 10 several years. Purther, there can be no rule of humb in such matters. Conditions and circumstances of onc unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. Il cannot be a mechanical act but ajudicious one. From this, the impugned directions must be held to be totally untenable and unsustainable. Thus, the Supreme Court set aside the orders oflowerCourts. Hie further relied on the decision reported 1997 SEC I ASHWANI KUMAR AND OTHERS VE STATE OF BIHAR AND OTHERS whacin the FullBench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts." So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an inegular mammer or on ad- hoc basis against an available vacancy which is already sanctioned. But, if the initiلس entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisatioει οι confirmation is given, it would be an exercise in fucility.It would amount to decorating a still barn baby. Under these circumstances, there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees, therefore, remained a mullity." "Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulinga reported in AIR 1997 Sec 3657 HIMANSHU KUMAR VIDYARTHI & ORS & STATEOFBIHAR AND ORS. wherein the Supreme Court has held that "they are teroporary employees working on daily wages .Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the LD . Act. The concept of retrenchment therefore, cannot be stretched to

15. Lemned Senior Advocate further argued thuat even in recant decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI, the Supreme Court has held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, be would not be entitled to be shsorbed in regular service or made permanent mercly on the strength of such continuance , if the original appointment was not made by following a due process of selection at cavisaged by relevant roles. It is not open to the Court to prevent regular recrustruent at the instance of temporary samployees whose period of employment has come to an end or of ad- hoc employees who by the very nantre of their appointment, do not acquire any right. " Further , ithas also held that "it is not as if, the personwho кесері на сададament either temporary or causal in nadare is not aware of his employment . He accepts the employnseat with open eyes . I may be tree that he is not in aposition in bargain not at arous length since be might have been searching for some employment so as to cالعل his livelihood and accepts whatever be gets . But on that ground alone, it would not be appropriate tojettison the concipioni schare of appointment , perpetunte illegalitics and to take the view that a person who las kauporarily or casually got employed should be directed to be continued permanently.By doing so, it will be creating another mode ofpublic appointment which is not permissible." Further, the SupremeCourt while laying down the law, has clearly held that "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appoinee......It has to be clarified that merely becauыс а temporary employee or a casual wage worker is contioned for a time beyond the term of his appointmeat , be would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a dne process of selection as envisaged by relevant rules . Further, 5018

THE GAZETTE OF INDIA: ALGUST 4, 2007 / SRAVANA 13. 1929

PART Ser ( ) )

other inducements . L'oder such circumstances . I find the Petitioners cannrır nuw question the settlements as this stage and since they are only temporary employees and since it is nos shown before this Tribunal that the Respondent Bank has got sanctioned posts for temporгагу employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent /Bank.

18. Further , the representative for the Petitioner contended that in a simpiar cases , this Tribunal had ordered for reinstatemem with hack wages and these disputes are also similar in nature and hence . the Petirioners are entitled for the sanie relief

CD 2006 SC443 National Fertilizers Ltd. and OthersVs. Sonrvir Singh, wherein the Supreme Court has held that "regularisation furthermore , is not a mode of appointment and Ifappointment is made without following the rules . the same being a nullity , the question of confirmation of an comployee spon the capiry of purported period of probation world notarise" Purther . in CDJ 2006 SC. 395 Municipal Council , Sujanpur Ve. Surinder Kumar , the Supreme Coun hau held that" it is not disputed that the appointment of theRespondent was not in sanctioned post . Being a' State" within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also in vioution di copguptional scheme enshrined under Article 14 and 6 of the Constitution of ladia would be void in law. " Further, la 2006 2 LN 89 Madhya Pradesh State Agro Industries Development CorporationVs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself jwould not confer any legal right upon him to be regularised in service. The Supreme Court a'so held that "thechanges brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisadon, privatisation and outsourcing is evident, in view of the settled legal position . as noticed thereinbefore."

19.But, I find since the Supreme Court has held thin temporary employees are not intitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar monchs and the Supreme Court has also held that each case must be considered on its own merit and the changer brought shout by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the fiovernment in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident . I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondenr/ Bank as alleged by him. Therefore, I find this point against the Petitioner.

Point No. 2:

The next point to be decided in this case is to what relief the Peticioner is comitted

20. In view of my foregoing findings that the Petitioner is a temporary empiinyee and he is not entitledto be absorbed ia regular service or made permanent merely on the strength of such continuance of work , I find the Vetizioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered acoordingly.

Ilictated to the P.A. , transcribed and typed by him , corrected anri pronounced by me in the open court on this day the 31st January 2007)

K. JAYARAMAN , Presiding Officer

Witnesses Examiner :-

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed, in regular vacancy or sanctioned post , the Petitioner is not cantitled to claim negularisation of his service. Further. when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list preparedby the Respondent/Bank , they are not entitled to dispurte the same and they are estopped from doing so .Further, their prayer before the labour authorities was only to restore the wait list and also for appointment theroon asitemporary messenger as per wait list . Under such circumstances, after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.:

WWI Sri R. Chengalvarayan WW2Sri V S. Ekambaram

For the Responden MW ! SnС . Маrіаррал MW1SriC Kumalingam

Tocunaents Market:-

Ex. No Date

Description

1-8-8 Xerox copy of the paper publication in daily Thanthi based on Ex. MI .

17. I find touch force in the contention of the learned counsel for the Respondent. Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements Entered into between the Respondent/Bank and Federation. at the time of reference, they have not questioned the settlement thor the number allotted to each individual in the wait list. Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was Dot abona ide in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or

W2 X-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank fox implementation of Fx.MI , 5019

माप्त का राजपत्र : अगस्त 4, 2007/ श्रवण 13 , 1929

[ भाग -3( ii) ]

W21 26-3-97

W3 24491

Xerox copy of the letter advising selection ofpart time Menial G. Pandi.

W22 31-3-97

Хегоx copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies.

Xerox copy of the of the appointment order to Sti 3. Pandi

Wi4 1-5-91

Feb. 2005

W23

Xerox copy of the advertisement in The Hindu on dailywages based on Ex . W4 .

Xerox copy of the pay slip ofT. Sekar for the mouth of February, 2005 wait listNo. 395 ofMadurai Cocke

20-8-91

W24 13-295

Xerox copy of the advertisement in The Hindu extending Period of qualifying serviceto daily wagas.

W6 15-3-97

Xerox copy of the Madurai Module Circular lether about Engaging temporaгу Employees from the panel ofwait list.

9-1192

W25

Xerox copy ofthe circular letter ofZonal Office. Chennai about filling up of vacancies of messenger posts .

25-3-97

Xerox copy of the Head Office circular No. 28 regarding, Norms for sunction of mesacuger staff.

9-7-92

₩26

Xerox copy of the minutes of theBipartite meeting.

Хагоx copy of the circular of Responden /Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W27 9-7-92

WB N

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for Implementation ofnorms -creation ofpat time general attendants.

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

7-2-06

W28

22-2-84 Хотох copy of the service certificate issued by Mint TerminusBranch.

18-7-95

W10

Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants.

Xerox copy of the service certificare issued byMint Terminus Brunch .

31-12-85

₩29

23-5-96

W11

Хегол сору of the service certificate issuedby Ayanavaram Branch.

14-3-97

W12

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

Xerox copy of the service certificate issued by Thousand Lights Branch

FortheRespond

16-4-97

W13

Ex . No. Date

Kerox copy of the service certificate issuedby Mint Terminus Branch.

Description

16-4-97

W14

Xerox copy of the settlement.

17-11-87

Xerox copy of the service certificate issued by Ayanavaram Branch.

Xerox copy of the settlement.

16-7-88

WIS NI

27-10-88 Xerox copy ofthe settlement.

9-1-91

Xerox copy of the settlement .

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recrtitment to Subordinate Care and Service Conditions.

Xerox copy of the settlement.

30-7-96

W16 N

M6 9-6-95 Xerox copyofthe minutes of conciliation proceedings.

Xerox copy of the Reference Book on Staff maters Vol . III consolidated upło 31-12-95.

28-5-91 M

Хегох copy of the arder in W.P. No.7872/91.

W17 6-3-97

15-5-98

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V.Muralikannan.

Хагол copy of the order in P. O. No. 2787/97 ofHigh Court ofOrissa.

W18 6-3-97

10-7-99

Xerox copy of the unter of Supreme Court in SLP No. 3062/99,

Xerox copy of the call letter from Madurai zopal office for interview of messenger post K. Subburaj.

M10 NU

₩19 6-3-97

Xerox copy of the wait list of Chennai Module.

Xirux copy ofthe call letter from Madurai zonal office for interview of messenger post-J. Velmurugan

25-10-99

M11

17-3-97

W20

Xerox copy of the order passed in CMP No.16289 & 16290/99 in W.A. No. 1898/99.

Xerox copy of the Service particulars- J.Velmurugam 5020

THE GAZETTE OF INDIA: AUGUST 4, 2007/ SRAVANA 1.1 . 1929

PARE M- SEC: 3 ( E ) ] नई दिल्ली, 20 जुलाई , 2007

thedispute on its file as CGD No. 124/99 and issued notices to both parties . Both Aicles entered appearance and filed cheir claim starement and Counter Starement respectively. After the constitution of this CGIT cum labour Court, the said dispute has been transferred to this Tribunal for adaudication and this Tribunal has numbered it as 1.10 ,No. 225/2004.

Follows: 2. The Schedule mentioned in that order is as वर.अ. 2186. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरण/ श्रम न्यायालय , चेत्रई के पंचाट ( संदर्भ संख्या 225/20041 को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/428/ 98- आईआर ( बी-1 ) 1 अजय कुमार, डेस्क अधिकारी

New Delhi , the 20th July, 2007

"Whether the demand of the woman ShriM. Flumali, wait list No.465 for restoring the wait list of temporary messengers in the establishmenrol State Bank of Ir.dia ax! consequential appointment thereupon as ternporary messenger is justitted? If so, co what relief the sand worknaam is entitled""""

3. The allegations of the Petitioner in the Claim Statement are briefly in follows ;

5.0.2186-in pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award ( Ref. No. 225/ 2004) of the Central Governmezinc, Inchustrial Tribunal -cum. Labour Court, Chennai as shown in the Annexure in the Industrial Dispute between the management of StateBank of India and their workmen , received by the Central Government on 20-7-2007 .

No. L-12012/428/ 98 - JK (B- 1) AJAY KUMAR, Desk Officer

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM-LABOUR COURT, CHENNAI

Wednesday, the 31st Jumuary, 2007

PRESENT Shri K. JAYARAMAN , Presiding Officer Industrial Dispute No. 225-2004 (Principal Labour Court CIGID No. 124/99)

( In he maller of the dispute for adjudiation under clauseid) of sub- section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) ,between the Management of State Bank of Inclia and their workmen)

HETWEEN

Sci M. Fluomalai

: Party/Petitionет

AND

TheAssistant General Manager , Pariy /Managerment State Bank of India , 7.0. Chennii

APPEARANΟΣ

For the Petitioner

: Sri V. S. Ekanbarum, Authorised Representative

For theManagement :Mrs. K.S. Sundar , Advocates

AWARD

1. The Central Government , Ministry ofLabour vide Order No. 112012/428/98 - IR (R- 1 ) dated 11-2-1999 has referred this dispute carliệt to the Tadul Nadu Principal Labour Court, Chennai and the said Labour Court has taken

The Pestiones was sponsored by Employment Exchange for the post of sich staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Mannadi branich from August , 1984. The Petitioner was orally informed thar his services were no more required. The non -employment of the Petitioner and others becarne subject matter before Supreme Court in the forms ot Writ Perition filed hy State Bank Fanployees' Maion in Wrir Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, an addition to its counter , filed a copy of seulement under Section 1811 ) reached het ween management ofStale Bank of leidia and All India State Bank of India Staff Federation and the settlement is with regard to absorprion of Class IV tentporary workmen who were denied employnent after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the nutice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Manmadi branch . He was called for an interview by a Committee appointed by Respondent Bank in this regard . But, they have not informed the result of interview and also with regard to appointment. Bul , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From August, 1984, the Petitioner has been working as a temporary messenger and some times performingwork in other branches also . While working on temporary basis in Kothur branch , another advertisement by the Respondent Bunk was shade regarding casual wickers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-1997, that his services are not required any more and he need not attend the office from 1-4-1997 . Hence, the Petitioner raised a dispute with regard to his non employment . Since the cunciliation ended in faiture, the 5021

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13, 1929

[ भाग खण्ड ( ii ) ]

matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the referencz framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt to reconsider the reference and the Petitioner requested the Respondent Bank to continue to engage him in service as obtained prior to 31-3-1997 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable scand that the service and the number of days worked by Petitioner were treated as of по совьеquелсе , since according to the RespondentBank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlementby which bin services and number ofdays worked by him afier interview do not merit consideration. The Petitioner was not a party 10 dse settlemeal mentioned by the Respondeza/Bank before the conciliation officer . Therefore, the Respondent's action to not absorbing him in regular service is unjust and illegal . Furcher , the settlements are repugnant to Section 25G & 25H of the T.D. Act. The termination of the Petitioner is against the provisions of Para 522 (4) of Sastry Award. Even though the settlement speaks about three categories (only a single wait list has been prepared and the Respondent/Bank has been Regularising according to their whims and fancies . The Respondent/Bank has also not ubserved the instructions regarding grant of increments, leave, medical benefits etc. to the temporary wurkmen which amounts to violation of relevant provisions of circular.The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts Do unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefiis .

The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) of I.D. Act. Ia terns thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No.465 in waitlist of Zonal Office, Chennai. So far 357 wait listed tramporary candidates , out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temропагу messenger . The Petitioner was engaged only in leave vacancies as and when it armst. When the Petitioner turving submitted to selection process in terms of settlements drawn as per retrenchiment provisions referred to above, cannot torn around and claim appointment. Such of those temporary employees who were appointed were engaged. for more tumber of days and hence, they were appointed. Under the settlement, employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporaгу employees who were engaged for 240 days were to be considered and under category (8 ) the temporary employees who have completed 270 days aggregatc temporary service in any continuous block of 36 calendar mooths and under category (C) the temporary employeen who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continnous block of36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered fur seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off datewas extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994.The Petitioner has no valid and enforceable right for appointment. The Respondent had Implemented the wohantary retirement scheme and even the permanent vacancies stand substratially reduced There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid tempoгагу employees were working in leave vacancies and not in regular permanent vacancies. In terms of aforesaid settlements, out of744 wait listed candidates , 357 remporary employees were appointed and since the Petitioner was wait listed at 465be was not appointed . The said sottilements were bonafidewhich were the only woritable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said sentlements were not questioned by any union so far and the seulements of bank level settlements and operated throughout the country . The Tamil Nado Industrial Establishment ( Conferment of Permanent Status to Workmen)Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is out correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per

settlements , vacancies upto 31-12-94 were filled up against 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt for adjudicacion by this Tribunal itself is not maintainable . The Petitioner was not in continuous service. Hence, the question of regular appointment/ absorption does not arisz. The engagerment of Petitioner was not authorised . The Pecitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section 18 ( 1 ) and 18 (3) of LD. Act in lieu of provisions of law, retrenchrment and implemented by Respondeu/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he waswait listed as per his length of engagement and could not be absorbed as he was positioned down io seniority.Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailingfrom the year 1970 onwards. Such of those comployees who are claiming permanent absorption and when their case was espoused by State Bank of India Stall Federation which resulted in five settlements dared 17-11-1967,16-07-1988,7-10-1988.9-1-1991 and 30-7-1996.

5022

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 , 1929

PART I-SEс . 3 ]

Point No. 1:-

the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages /casual laboure. Purther , for circle ofChemai wait list of daily wages was not finalized andhence notpublished and there is only one wait list for the appointment of temporary employees.After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with costs.

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been sellected and wait listed in terms of the relevant guidelines / circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temрогагу basis.After engaging them intermittently for some years, the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since theRespondent/Bank terminated several tempoгагу etuployees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) 1987 , the Respondent/Bank hurriedly cntered imo a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of frmal hearing of the Writ Petition , This settlement has become an exhibit of the Respondeat/Bank and has been marked as Ex . MI . The Petitioner in this case and the Petitioners in the connected cases attacked this seulement as it is non binding on them on the ground that they have been interviewed and selected in the pensancot vacancy and Respondent Bank without any intimation of notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they Further prayed for reinstatement with back wages and other attendant henefits .

5. In the additional claim statement, the Petitioner contended thathe was having been sponsored by employmdu exchange and having undergone medical examination, the Petitioner has folfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the RespondeajuBank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrinedin theConstitution of India.In the year 1998, the Respondent/Bank has issued a circular to the effect that under no pircomstances , wait listed persons like the Petitionerbe engaged even in menial category, thus, the Respondent/Bank imposed total ban for his future cmployment . Even though there were sufficient number of vackovics in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkinen with ulterior motive, The Respondent/Bunk has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies Hezice, the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinderto the Counter Statement of the Respondent, wherein it is stated that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18( 3 ) of the Act. As per recruitment rules ofthe Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the Instructions laid down under codified circulars of the Responden/Bank. Even in the Writ Petition before the High Coun in W.P.No.7872 of 1991, the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allere that the settlements are contrary to the rights ofthe Petitioner. Hence, the Petitionez prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideratiu are :-

(1) "Whether the demand of the Petitioner in Wait List No. 465 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment Thereupon as temporary messenger is Justified?"

(0) "To what relief the Petitioner is cutitled?"

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issuedby the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18( 1 ) entered into between the alleged Federation and the Respondent/ Management . They further contended that though the RespondentBank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11 1987, therefore, they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary croployees at branches/offices are not allowed to be in service exceeding 200 days . hence the question of Petitioner working for 240 days does not arise at all . Further , they have inwoked the relevant provisions ofChapter VA of the 1.D.Act and it is preposterousto contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 2.5H are very much applicable to the Peritioners who are retrenkled messengers and are eligible to be reinstated , Learned representative for the Petitioner 5023

भारत का राजपत्र : अगस्त 4, 2007 / श्रवण 13, 1929

[ भाग -खण्ड 3 (H) ]

contended that in 1996 LAB & IC 2248 CENTRALBANK there is no pleading in the Counter Statement with regard to this wait list .Purther the Hon'ble High Court has beld in its order daked 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Seulement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treal one class and their action undoubtedly amounts to violationof Article 14 ofConstitution of India. Further , the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wrigale out the illegality coramitted or perpetrated by the Respondent Bank by combing equals with mequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex M10 comprises ofboth messengerial and non- messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of cusuals. Therefore, both belongs to two different and distinct categories. But,Ex.M 3 provides for the same normas to the cannals as in the case of temporary employees in the matter ofabsorption. Therefore, it is violative of Article 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex.MI tamely wait list is not in conformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, Do wait list was released / published even after the Court order in WMP No.11932/91 in W.P.No. 7872/91 directing the Respondent/Bank to release the list of successful candidates porswunt to the first advertisement published in "The Hindu' dated 1-8-88 . Furthermore, wait list under Ex.M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From aال these things, it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex. MI was not produced at the time of conciliation proceedings beld during the year 1997-98 held at Chemai and Madurai and only during the year2003 the Respondent/Bank produced the wait listEx. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employers, the expression that they were engaged in leave vacancy was used as a device in take them out of the principal OF INDIA VS. S. SATYAM ANT OTHERS the Supreme Court has held that Chapter V -A of the 1.D. Act providing for retrenchment is not mached only for the benefit ofthe workinen towhom Section 25F applies but for all cases of retrenchment. Therefore, the application of Section 25Η cannot be restricted oply to one category of retrenched workroen . Therefore, the contention of the Respondent Bank that the Petitioner has no valid and enforczable right for appointment is untenable. It is further contended that on behalfofthe Petitioner that Ex .W2, W3 and WB as well as Fix. MS which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex .Ml and the averments of MWI and MW2 and their testimonies during the cross-examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause I of Ex . Ml deals with categorization of retrenched temporary employees into "A, Band C', but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come- last go and therefore , the categorization in Clause I is illegal . Clause 1 (a) of Ex.M1 prywides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers, facashes, cash coolies, water boy's , sweepers etc. for absorption along with the other cligible categories of temporary employees is not valid. Forther, engaging casuals to do messengerial work is in contravention of the guidelines mentioned in ReferenceBook on Staff matters, copy ofwhich is marked AB Ex. WE . Further, the appointment of daily wage besis for regular meascagerial jobs etc. are strictly probibited as per bank's circulers /instructions . En such circumstances, the absorption of caspals along with the eligible categories is not valid. Therefore , these persons who were engagedby the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter ofarriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex .W2 four types ofwaiting lists have to be prepared. But Use Respondent Bank hus alleged to have prepared only one wait list for cach module as per Ex.M 10 in this case . Those candidates under ExM10 were found suitable for appointment as messengers and sweepers. Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex ML, M3 and M 4 respectively. But, when MWI has spoken about the settlements, he deposed that settlement dated 27-10-88 was not inchaded in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called H inclusion except his bald statement. Further , accordingto MW1 wait list under Ex .M10 was prepared on 2-5-92 bul

3218-G107-27 5024

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PART 1 Sec . 3 ( ii) ]

application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 258 and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respoтикети Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further coartended onbehalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and Dot included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 Π LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wharcin the Supreme Court has held that the expression actually worked under the employer' cannot mean that those days ondy when the workmen worked with bammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer anl forwhich he had been paid wages either under express or implied contract of service or by compulsion of statule, standing orders etc. It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal. Inall these cases, the Petitioners were in crmployment as sub stuff in early 1980s but were denied further engagement on account of settlements/lapsing of wait lists and out of these Petitioners some of them have completed 240days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault of theirs, they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour .

clause 2 ( 00 ) of the LD. Act, 1947. Though the Petitioner' work in the Respondent Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 19854 SCC 201 HD. SINGHVS RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as "badlies casumis or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Leamed representative further contended that Ex . M10 wait list has notbeeh prepared in accordance with principle ofseniority in thelegal sense , since the selected candidates with longest service should have priority over those who joined the servicel letter and therefore , the walk Het under Ex . MI0 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in scoorduncewith the law and the spirit of the settlement, but to utter violation and in breach of it. Though clause 2(e) of Ex. M4 states that candidates found suitable for perioadest appointment willbe offered appointment against existing/future vacancy anywhere in module or circle and in case, candidate fails to accept the offer of appointment or posting within the prescribed period,be will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the barik. The Respondent Bank has not produced any document show how he has arrived at the seniority and til date, it is * zmystery as to who that senior was and there is no documentary to evidence in support of the averment and also for the averment of MWI . Therefore, the termination of the Petitioner who was in regular service of the Responbient/Bank is arbitrary , mala fide and legal and the Respondent/Bank bas not acted in accordance with the terms of settlement on absorption of temporary employees . Thought theRespondent /Bank has produced Ex . Mé which alleged tobe a copy of minutes of conciliation proceedings dated 9-6-75before Regional Labour Commissioner (Central),Hyderabad, it is neither a 18 (3 ) settlement nor 12(3) settlement as claimed by the Respondent/Bankwhich says only with regard to modification of Ex . Ml to M4 made in terms of Ex. M6 . Though the Respondent/Bank producedEx . M7 andM11 interim orders pasted byHigh Court ofMadras in WMP No.11932/91 in W.P. No.787291 ceased to have any relevancewhen the main writ has been disposed of in the year 1999 and therefore , they do not have ady bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross-examination had become apparent that they have Do personal knowledge about the settlements which are marked as Ex . Mi to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent/Bank it was implanented only in the year 2001 and it constitutes post reference period and hence evidence of Respondent/Bank has no

10.But, as against this, the learned senior counsel for the Respondent/Bank contended that the reference made by the Governmeat itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the commected disputes were not in continuous service. Hence , the question of regular appointment'absorption does not arise at all and their engagement was not authorised. Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of section 18( 1 ) and 18 ( 3 ) of the I.D. Act, in lieu of the provisions of law and implemented by the Respondent Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per 5025 भारत का राजपत्र अगस्त , 2007/ आवण 13 , 1929

[ भाग-खण्ड (i ) ]

first category, if the settlement was reached with representative union ofwhich the contesting workmen теле menibers and if there was nothing untreasonable or unfair in the terms of the settlement, il must be binding on the courtesting wordenen also." He further relied on the rulings reported inAJR 2000 SC 469 NATIONAL ENGINEERING WNFERING INDUSTRIES LTD. Vs. STATEOF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the frac will of the parties and is apointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even coruption and other inducements , it could be subject matter ofyet another industrial dispute which an appropriate Govt. may refer for adjudication after axunmining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be Exir and reasoumble. " Relying on all these decisions, leamed counsel for the Respondent contended that though it is alleged that they are not parties in the settlement, since the fedention in which the Petitioner is also one among then, they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further, be argued that no onion of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and be is ostopped from disputing the

11. Learned counsel for the Respondent forther counded that though the referenço made in this cause and other cormected disputes is ' whether the demand of the works with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential sppointment thereapon as temporary messenger is justified? " The Petitioner contended that the retrendumeat shade by the Respondent/Bank is not valid and ise buss to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt isDot valid. Further, in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement

length of bis engagement and could not be absorbed as be was positioned down in the seniority . The Respondent Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . L'urther, the allegation that he was sponsoredby EmploymentExchange is incorrect and the allegation that heworked as temporary messenger is also incorrect, they were engaged against leave vacancies. The settlement entered into by the Respondent/Bank and the federation were bonafide whichwere the onlyworkable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait hated and therefore, thePetitioner is estopped froan equestioning the settlement directly or indirectly and his claim is liable to be rejected Furthermore , the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country. Further, he relied on che rulings reported in 1991 ILLJ323 ASSOCIATED GLASS INDUSTRIES LTD. VS. INDUSTRIAL TRIBUNAL AP. AND OTHERS wharin under Section 12(3 ) the union entered into a settlement with the mapagament setling the claim of 11 wurkmen and the workmen resigned from the job and received terminal benefits, but the worlumen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that "in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion , the settlement is binding on the workmen " Leamed counsel for the Respondent further relied on the rulings reported in 1997 ILL 1189 ASHOR AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the BombayHigh Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority anton will be binding on all workmen of the establishment, even those whobelong to the minority unionwhich had objected to the same.To that extent, it departs from the ordinary law of contracts, the object obviously is to ophold the sanctity of settlements, reached with the active assistance of the conciliation officer and to discourage an individual cmployee or a minority union from scuttling the settleme ." It further held that " there may be expaptional cases ,where there maybe allegations of mala fides, fraud or even corruption or other inclucernents . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and considention." Lexumed counsel for the Respondent further relied on the ralings reported in 1997 I LLJ 308 K.C.P. LTD. Vs. PRESIDINGOFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (1) those arrived at outside the conciliation proceedings under section 18 ( 1 ) of the 1.D. Act and ( ii) those arrived at in the course of conciliation proceedings under section 18 (3 ) . A settlement of the first category has timited application and binds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all wurkmen of the establishment . Even in case of the

ELANDSHOP 12.But, as against this on behalf of the Petitioner it is comended that meze wording of reference is pot decisive inthe matter of icnability ofa reference and the relied cau the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS LUINION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the KeralaHigh Court has held that " mere wordling of reference is not decisive in the matter of venability of a resfi Even though the Tribunal cannot go beyond the order of reference, if points of difference are disterulble from the material before it, it has puly on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor worioman to hardship involved in moving the machinery again." It further held that "the Tribunal should look into 5026

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13. 1929

[PART I- SFL.. 3( ii ) ] the pleading and find out the exact nature of pleading of thePetitioner to fred out the exact mature of dispute instead ofrefusing to answer the reference on roerits. " Punther, he argued jhat the Tribunal has got power to go into the questionwhether the Petitioner is to be reinstated in service or not for which be relied on the rulings reported in 1998 LABIC 1664VAN SAGNATHAN ORIENT PAPERMILLS INDUSTRIAL TRIBUNAL & ORS , wherein the Madhya PradeshHigh Court has held that the Tribunal camot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties." He also relied on the rulings reported in 1998 LAB IC 1.507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT MADRAS, wherein it has been held that "it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner . " He also angued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC569 the Supreme Court has held that "the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. TheLabour Court is expected to decide the real nature of disputes between the parties and with theu object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily tramed nor was it framed to the high expectation of the Labour Court." Relying on all these decisions , the representative for the Petitioner argued that though in the referenot, it is not mentioned that wisether the retrenchiment is valid for mnt, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal ceo look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13, 1 find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to birm or not?But, 1 find that the settlement was validly catered inin between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent Bank, I find the Petitioner is not entitled to question the seulement.

14: Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wail list and the time of wait list has been exhausted , now the Petitioner cannot question that hẹ should be reinstated in service and he relied on the rulings . reported in 1996 3 SCC 139 LINION OF INDIA AND OTHERS VS. K.V.VUEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal iswhether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt service in an existing or a future vacancy." In that case, pruning of select list on reduction in mumber of vacancies was made in view of the impending absorption of steam surplus staff and apolicy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that in such circumstances , denial of apponatrient to the persons removed from the selecı lisa is nor arbitrary and discriminatory." He further relied on the rulings reported in 19976SCC584 SYNDICATE RANK& ORS VS SHANKAR PAUL AND OTHERS wherein the Supreme Court hasheld that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year voly and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98, we are of the opinion thar the Kespondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the servives of the bank . Whatever conditional neht theyhad cometo an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore, the learned Single Judge and the Division Reach , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VY UNTON OF INDLA wherein the Supreme Court has held that "candidates included in merit list has no indefeasible right to appointment even if a vacancy exists" and relying on all these decisions , learned counsel for the Respondent contended that since the Pentioner bas no right to question the wait list and since there is no meda fide on the part of the Respondent /Bank in preparing the wait list, it cannot he said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cammer plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 1.AB IC 2168 STATE OF HARYANAAND ORS .Vs. PLARA SINGH AND OTHERS wherein the Supreme Court hus held that "now coming to the direction that all those ad hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy.The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for bun which means creation of a vacancy ; (b ) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door (c) he was not eligible and qualified for the post at the time 5027

भारत का राजपत्र अगस्त 4, 2007 / वण 13 , 1929

[ भागखष्ठ 3( ii ) ]

their disengagement is not arbitrary. He further relied on the rulings reported in 199431LJ (Supp ) 754wherein the Rajasthan High Court has beld that "Under Section 25G of the 1.D. Act retrenchment procedure following principle of "last.come- first go ' is not manduory but only directory.on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors HD retaining juniors . Though in this case, the Petitioner buns alleged that his jomors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal thathe has worked roore days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissedwith costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 Secretary, Stale of Karnataka Vs. Uma Devi , the Supreme Court has held that merely because a termporary employee or a casual wage worker is continued for a time heyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was THD made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employers whose period of employment has come to an end or of ad- hoc employees who by the very nature oftheir appointment, do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of bis croployment .He accepts the employment with open eyes It maybe true that he is not in a position 10 hargain not al arins length since he might have been scarching for some employment so as to eke out bis livelihood and accepts whatever he gets . But on that ground alone, it would not he appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got eraplayed should be directed to be continued permanently. By doing so, il willbe creating another mode of public appointment which is not permissible ." Further, the Supreme Court while baying down the law, has clearly held that "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employce or a casual wage worker is continued for a time beyond the ton ofhis appointinent , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . Further , in CDJ 2006 SC 443 National Jiertilizers Lad and Others Vs. Somvir Singh, wherein the Supreme Court has held that "regularisation furthermore , of his appointment; (d ) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving ofsuch blanket orders, None ofthe decisions relied upon by the High Court justify such wholesale , unconditional urders . Moreover , from the mere continuation of an ad-hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumptions may be justified only when such continuance extends to several years . Further , there can be no rule of bumb in such matters . Conditions and circumstances of cone unit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facık and circumstances of that case . It cannot be a mechanical act but a judicious one. From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported in 1997 ISEC 1 ASHWANI KUMAR AND OTHERS VL. STATEOF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sunctioned posts."So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation o regularisation of an irregularly appointed candidate would arise, if the candidate conuenied is appointed in an irregular manner or on ad-hoc basis against an available vacancy which is already sanctioned . Bur , if the initial entry itself is unauthorised and is not against any sanctiomed vacancy, question of regularising the incumbent an such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility.It would amountto decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise ofconfirming these employees , therefore, remained a nullity." "Therefore, learned counsel for the Respondent contended that these teamporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Turther , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHLI KUMARVIDYARTHI & ORS VS STATE OF BIHAR AND ORS. wherein the Supreme Court has held that " they are temporas y employees working on daily wages Under these circumstances , their disengagement frost service camot be construed to be a retrenchment under the 1.D. Act . The concept of retreachment therefore , cannot he stretched 10 such an extent as to cover these employees . Since they are on'y daily wage employees and have no right to the posts .

5028

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13.929 (PART 11-SUC . 3 (11) ]

since it is not showa helore this Tribunal that the Respondent/Bank has got sanctioned posts for tempрогагу employees to be absorbed , I lind the Peticioners cannot claim for reinstatement or regularisation in services of the Responderu Bank .

18. Further , the representative for the Petitionег cuntended that in a similar cases , this Tribunal bad ordered for reinstatement with back wages and these disputes are also similar in nature and hence, the Petitioners are entitled for the sanie reliet.

19.But. I find since the Supreme Court has held that temporary employees ure not inairled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Suprene Court probably having regard to the changes in the policy decisions of the Govemment in the wake of prevailing market есоnоmy , globalisation , privatisation and outsourcing is evident I find the Petitioner is not entitled to claim regularisation er reinstatement in the Respondent Bank as alleged by him. Therefore, I find this point against the Petitioner.

is not a mode of appointment and if appointment is made without following the rubes , the same being a nullity , the question of ponfirmation of an croployee upon the expiry of purported period of probation would not arise. " Further, in CDJ 2006 SC 395 Municipal Council, Sujanpur Vs. Surinder Kurmar , the Supreme Court has held that "it is oot disputed led the appointment of the Respondent was TROL in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was boundto follow the coeruiunent rules. Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 of the Constitution of Indiawould be void in law, " Further, in 2006 21.LN 89 Madhya Pradesh State Agro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court bas held that " vnly because an employee had worked for more than 240 days of service by that itself would nor confer any legal right upon him to be regularised in service." The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

Point No. 2;

The next point to he decided in this case is to whar relief the Peririoner is entitled?

20. In view of my foregoing findings that the Peritiuner is a temporary employee and he is not entitled 10 beabsorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any reisef as claimed by him . No Casts.

21. Thus , the reference is answered accordingly.

(Dictated to the P.A.. transcribed and typed by him. corrected and pronounced by the in the open court on this day the 31st Janмагу, 2007 )

K. JAYARAMAN, Presiding Officeт

Witnesses Examined:

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor he hasbeen appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent /Bank , they are not entitled to dispuse the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Linder such circumstances , after expiry of the period mentioned in the scalements which were subsequently amemkled by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them. Unxier such circumstances , ir cannotbe questioned by the Petitioner.

WWL SriM . Fahurmalai WW2Sri V.S. Ekambaram

For the Respondent MW1SnC . Mariappan MW2 Sri C. Ramallingam.

Documents Marked:-

Ex .No. Date Descriptiun

1-8-88 Xerox copy of the paper publication in daily Thanthi based on Ex . MI .

742 24-88 Хегол copy of the administrative guidelines issued by Responden / Bank for implementarion of Lix . Mt.

17.1 find much force in the contention of the leamed counsel the Respondem . Though in the Claim Statement, the Petitionershave made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference, they have not questioned the settlement nor the number allowed in each individual in the wait list Further, the Petitioners have not questioned the seatlement and they have not allegert that settlement was not a bona fide in nature or it has been arrived at on account of mala fide, misrepresentation, fraud or even corruption or other inducements; Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and

244-91 Xerox copy of the circular of RespondentBank to all Branches regarding absorption of daily wagers in Messenger vacancies.

5029

भारत का राजपत्र अगस्त 4, 2007/श्रवण 13 , 1929

[भागभागखण्ड ( in) ]

W25 06-03-97

1-5-91 Xerox copy of the advertisement in The Hinktu on daily wages based on Ex . W4.

Xerox copy of the call letter from Madurai Zonal Office for interview ofmassenger post- J.Velmurugan

W5 20-8-91

17-03-97

W26

Xeгon copy of the service particulars- I.Velmunagan.

Хепох copy of the advertisement inThe Hindu extending period of qualifying service to daily wagers .

26-03-97

W27

15-3-97

Xerox copy of the letter advising selection ofpart time Menial G.Pandi Xeгox copy of the circular letter ofZonal Office, Chemal about filling up of vacancies of messenger posts.

31-03-97

W28

Xerox copy of the appointment order to SriG.Pandi

25-3-97

Feb.2005

W29

Xerox copy of the pay slip of T. Sekar for the mouth of February, 2006 wait lisa No.395 ofMadurai Circle.

Хегоx copy of the circular of Respondent/ Bank to all Branches regarding identification of messenger vacancies and filling thembefore 31-3-97.

13-02-95

W30

Xerox copy of the Madurai Module (Circular letter about engaging lemporary employces from the panel of wait list .

09-11-92

W31

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at Office/Branches to do messengerial work.

9 16-9-87

Xerox copy of the Head Office circula No.28 regarding Norms for sanction of messenger staff.

Хегох copy of the service certificate issuedby Mannadi Branch.

09-07-92

W32

1-8-88

WI0

Xerox copy of the minutes of the Bipartite meeting.

Xerox copy of the service certificate issued by Mamadi branch.

09-07-92

W33

30-9-93

W11

Xerox copy of the service certificate issued by Elephant Gate branch.

19-10-94

W12

Xenix copy of the service cortificate issued by Elephant Game branch.

Xerox copy of the settlement between Respondeno/Bank and All India Staff Bank of India Staff Federation for implementation of nontos-creation of part time general attendants. 3-10-94

WI3

07-02-06

W34

Xerox copy of the service certificare issuedby HVF Avadi branch .

13-09-96

W14

Xerox copy of the service certificate issued by Avadi branch.

Xerox copy of the Local Head Office circular about conversion of part time employees and redesignate theм ва general attendants.

22-01-96

W15

W35 31-12-85

Xeros copy of the service certificate issuedby Elephant Gate branch.

Xerox copy of the Local Head Office circular about appointment of teroporary employees in subordinate cadre. 15-03-96

W16

Xerox copy of the service certificate issuedby Nungambakkam branch

FortheRespondent/Management :-

10-03-97

W17

ExNo. Date Description

Xerox copy of the service certificate issued by LHO Chennai branch.

Xerox copy of the settlement.

17-11-87

11-403-97

W18

Xerox copy of the settlement.

M2 16-07-58

Xerox copy of the service certificate issued by Thousand lights branch.

Жегоx copy of the settlement. 17-06-97

27-10-88

W19

Xerox copy of the service certifivate issued by Elephant Gate branch .

Хетох сopy of the settlemen

09-01-91

15-07-97

W20

MES

Хегоx copy of the settlement

30-07-96

Xerox copy of the service certificate issned by Kottur branch.

M6 09-06-95

TW2L N

Хелоx copy ofthe minutes of conciliation proceedings.

M7 28-05-91 Xeгox copy of the order in W.P. No.7872/91.

Xerox copy of the administrative guidelines in reference book on stuff matters issued by Respondent /Bank regarding recruitment to subordinate cadre & service conditions .

M8 15-05-98 Xerox copy of the order in O. P. No. 2787/97 ofHigh Court ofOrissa .

W22 Ni

10-117-99

Xerox copy of the Reference book on Staffmatters Vol . III consolidated upto 31-12-95.

Xerox copy of the order ofSupreme Cou in SLP No. 3082/99 .

6-03-97,

M10 N

W23

Xerox copy of the wall list ofChennai Moduke.

Xerox copy of the call letter fromMadurai ZonalOffice for interview of massenger post-VMuralisman .

25-10-99

M11

06-03-97

W34

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 189399.

Xerox copy of the call letter from Madoria Zonal Office for interview of massenger post-K. Subburaj 5030

THE GAZETTE OF INDIA: AUGUST 4 , 2007 /SRAVANA 13. 1929

नई दिल्ली, 20 जुलाई , 2007

का.अ. 2187.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीघ, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेत्रई के पंचाट ( संदर्भ संख्या 230/2004 ) को प्रकाशित करती है , को केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/436/98- आई आर ( बो 1 ) अजय कुमार , डेस्कअधिकारी New Delhi , the 20th July,2007

S.O. 2187. In pursuance of Section 17 of the Industrial Disputes Act, 1947 114 of 1947 ) . rhe Central Government hereby publishes the award (Ref. No. 230/ 2004 ) ofthe Central Government , Industrial Tribunal - curn- Labour Cuget , Chetanal as shown in the Annexure in the Industrial Dispute herween the management of State Bank of India add their workmen , received by the Central Governmeaal on 20-7-2007,

No. L- 12012/436/98 - IR (B - J) ] AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAT

Wednesday , the 31st Jamary, 2007 PRESENT

ShriK. JAYARAMAN, Presiding ( Meer Industrial Dispute No. 2.30/2004 (Principal Labour Court CGID No. 149/99) ( Io the matter ofthe dispute for adjudiation under clause ( J ) of sub- section ( 1 ) and sub - section 2( A ) uf Section 10 of The Industrial Disputes Act, 1947 ( 14 of1947 ) , between the Management ofState Bank of India and their workmen) .

RETWEEN

Sri F. Ashokan

: Party/Petitioner

AND

Tibe Assistant General Manager , Party/Management StateBank of India , 7. 0. Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Eikambaram, Authorised Representative For the Management

M/ s .K.S. Sundar, Advocates

AWARD

1. The Central Government Mmistry off abour , vide Order No. Lat 2012/436/98 - IR (B - 1 ) dated 10-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

[PARI II-SEC . 3 (ii ) ] the dispure on its fikk as CGD No. 149/99 and issued ajotices to both parties. Both sides entered appearance and filed their clasm starement and Counter Statement respectively . Afler the constitution of this CGIT com Labour Court, the said dispute has been transferred to this Tribunal for odjudication and this Tribunal has numbered it as 1.D.No. 230/2001 .

2. The Schedule meminined in that order is as follows:

"Whether the demand of the workman Slui E. Ashokan, wait list No.374 foi resturing the wait lest of remporary messengers in the establishment of State Hapk of India and conse quential appointment therespun as temporary messenger is justified ? If so, to what reliet the said workman is elilled !"

The allegations ut the Petitioner in the Ctaim Statement are ( welly as follows

The Petitione: was sponsored by Employment Exchange for the post of sub staff is: Class IV cadre in Stale Bank l India and he was given appointment as messenger alter an interview and educal examination. He was apprinted in temporary basis at Ambettur branch from: 20-9-1984 The Petitiones was ocally informed that his services were rx mere requires: The поп - employment of the Petationer and others became subject matter before. Supreme Court in the form of Writ Petition Filedby Stare Bank Fampluyees Union in Writ Petition No 342/87which was taken up by the Supreme Court . The Respondent Bank , in addition is its roenter , filed a spy of settlement under sectione | Bilbreached between management of State Bank of India and All India Stute Bank of India Staff Federation arul the settlement is with regard to shbsurption of Class IV temporary workmen who were denied employment after 1985 66 were classified in the settlement was under consideration once again and they classified the workarien under three: categories namely A. B and C. Though the classification was unreasonable , the RespondentBank brought to the native of the Petitioner about she interview to be held through advertisements. The Peritioner also submitted bis application in the prescribed format Eurough Branch : Manager of the Ambath branch. He was called for an interview by a Committee appointed by Responden/Bank in this regard. But they have not informed the result of interview and also witin regard to appointment. But , the Petitioner was informed urally tojoin at the branch where be initially worked as a class IV employeе . Этот 20-9-1984 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis IT. MRL Mistrali branch , another advertisement by the Responden Bank was made regarding casual workers who were eported to be in service during the same period . While the Petitioner was working as such . the Manager of the branch informed the Petitioner orally on 313-1997 that his services are not required any more and he need not allend the office from 5031

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[ भाग -खण्ड 3( i) )

1-41997. Hence, the Petitions raised a dispute with regard to his non-employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, be has made a fresh representation to Clovt to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage hira in service as obtained prior to 31-3-1997 and to regularise him in service in due course. The RespondenuBank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to the Respondent/Back, il engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlemeatby which his services and number of day's worked by him after interview de not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondeos/Bank before the conciliation officer. Therefkost, theRespondent's action in not absorbing him in regolar service la unjust and illegal . Furtiser, the senlemeals are repugnantto Section 250 & 25H of the I.D. Act. The termination of the Petitioner is against the provisions of Para 122 (4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been Regularising according to their whins and fancies . The Respondent Bank has also not observed the instructions regarding, grant of increments , leave , medical benefits etc. to the temporary workmen which amoutts to violation of relevant provisions of circular . The Respondent /Bank engaged the Petitioner and extracted the same work either bypayment of petty cash or by directing him to work under assumed name or by both which arcounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant Telie: of regular employment in Respondent/ Bank with all attendant benefits.

when their case was capoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987, 16-07-1988,07-10-1988,9-1-1991 and 30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn onder section 18(3) of 1.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary comployees and the Petitioner was wait listed as candidate No. 374 in wait list ofZonal Office, Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointedby Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was cngalia only in leave vacancies as and when it arose.When the Peditioner having submitted to selection process in mintis of settlements down as per retrenchowcat provisions referred to above. camnot turn around and claim appointment . Such of those temporary employees who were appointed were engaged fut more number of days and hence, they were appointed. Under the settlement, employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the tempoагу employees who were engaged for 240 days were to be considered and under category ( B ) the temporary croployees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimam 70 days aggregatetemporary service in any contimious block of 36 calendar monthswere to be considered.As per clanse 7, the length of lemporary service was to be considered for seniority in the wait list snad it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement subeme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the fauts that all the aforesaid temрокту employees ware working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid selliements, out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wall listed at 374 he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is cstopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by suy union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment ofPermanentStatus to Workanen) Act, 1981 does not apply to Respondent Bank and thisTribunal bas no jurisdiction to entertain such plea. It is not correct to say that documents and identity of 4.As against this, the Respondent in its Counter Statement alleged that reference made by the Govt for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service. Hence , the question of regular appointment /absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement The settlement drawn under provisions of Section 18( 1 ) and 18(3 ) of 1.D. Act ist lieu of provisions of law, retrenchment and implementedby Respondem/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts thathe was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority.Due to the business exigency , the Respondeau Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and

32190107-28 5032

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13 , 1929 [PART -SRC. 3 ( ii ))

thereupon as temporary messenger is justified?"

( "To what relief the Potitioner is entitled?

Polat No. 1T

Petitioner was verified before the Petitioner was engaged. It isalso pot correct to say that the Petitioner wis discharging the work of pecitanent messages . As per settlements, viomcies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 tobe filled up against the wait list drusen fo sppointment of daily wages /casual labour. Further, for circleofChennai wait list of daily wages wu not finalized and hence not published and there is only one wait ist for theappointment of temporary simployeza ,Aher the exрігу of wait list the Petitioner has no claim för permanend sbsorption, Hence, for all these reasons, the Respondent prays to dismiss the claim with costs.

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial dispuses have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines / circulars of the Respondent/Bank in permanent vacancies in subordinate cadre ou temporaгу basis. After engaging them intermittently for sorme years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of theworkmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed itbefore the Supreme Court al the time of final bearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . MI . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and RespondentBank without any intimation o notice denied an oppurtunity to work in the bank afier 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the setrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5.In the additional claim statement, the Petitioner contended that he was having dean sponsoredby employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger kad other classe TV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore, the RespondentBank is duty bound to regularise the servicea of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent Bank has issued a circular to the affect that under no circumstancos, wait listed porsons like the Petitioner be engaged even in menial category, thus, the Respondent/Bank imposed total ban for his future employment Even though there seert sufficient number of vacancies is claus IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed worknicawith pherior motive. TheRespondent/Bank has been antararily filling up the vacancies with the persons other than weit listed workmen according to their whims and fancies.Hence, the Petitioner praya tha! an wward may be passed in his fiavpur.

6.Again, the Petitioner filed a rejoinder to the Counter Staumant of the Rrapondent, wherein is is stated all the settlements made by the bank with the State Bank of Iodin Stuff Federation were under section 18( 1 ) of the Act and notunder section 18(3 ) ofthe Act, As pez recruitment rules of the Respondent/Bank, recruitment of clans IV staff in theRespondent/Banik is in accordance with the instructions laiddown under codified circulars of the Respondent/ Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner .Hince, the Petitioner prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration jure :

0 "Whether the demand of the Petitioner in Wait List No. 374 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment

9. On behalf of the Petitioner , it is contended that thesePetitioners were recruited as temporary employees In the Respondent/Bank under the guidelines and circulars issued by the Respondent Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under section 1841) entered into between the alleged Federation and the Respondent/Management . They further contended thلس though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in colinous service on 17-11-1987 , therefore, they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars / guidelines isaned by the Respondent/Bank to the effect that kamporary employees at branches /offices are not allowed to be in service excoeding 200 days, hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter VA of the L.D. Act and it is preposterous to contend that the [भाग खष्ठ 3( 日) ]

5033

मारव का पजपत्र : आज 4 2007/ वण 13, 1929

Petitioner has no valid and enforceable right for appointment as Section 25G and 25t are very much applicableto the Petitioners who are retrenchedmessengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-Aof the I.D. Act providing for retreachunent is not enacted only for the benefitof the workmen towhom Section 25F applies but for all cases of retrenchanent. Tacrefore, the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is tussenable. It is further contended that on behalf of the Petitiongs that Ez. W2, W3 and W8 as well as Ex . 48 which constitute/relate to the circular instructions of the Respondent Bank issued from time to time in connection with the implenwatation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . Ml and the avernouts of MWI and MW2 and their matimonica daring the cross-examination will clearly show how the bank bas givena raw deal to the Petitioner from the beginning linking his future with the settlements. Purther, Clanse 1 ofEx. M! deals with categorization of retreached temporary comployees into'A, B nad C' , bet this categorization of 'A. B&C' in quibe oppowed to the doctrine of"last come fust go or first come- last gu ' and therefore, the categorisation InClause 1 is illegal. Clin (a) of ExMl provides κα opportunity to persons who engaged on caum beris and allowed to work in leave / carnal vacancice of messangras, farashes , canh coolies , water boys, sweepers esc . for absorption along with the other eligible categories of temporary empiryces is not valid, Further , engaging casuals to do messengerial work is in contravention of the guidelines meationed in Reference Book on Staff matters, copy of which is markedsEx.W8, Parther, the appointment of daily wage basis for regular messengerial jobs etc, are strictly prohibited as per bank's clecules/ actions . In such circumstances , the absorption of causis along with the cligible categories in not valid. Therefon , tam persons who were copged by the Respondent/Bank on cua basis should not be given permanent appointment in the bank service. Thosa casuals were given more beneficial treatment in the matter of riving at qualifying service for interview and selection. But, tamponzy staployees have not been informed about this amendment which includes casuals affecting their intermat and chance . Further, as ра instructions in Ex.W2 four types of waiting lists have to be prepared .But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 1D in this case, Those candidates under Ex.M10 were found suitable for appointment as mensengers and sweерек. EvenMW ! is unable to say as to when the wait 1st Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are farked as Ex: M1 , M3 and M4 respectively. But, when MWI has spoken about the

acttlements , be deposed that settlersent-dated 27-10-88was not included in the Madras Circle since the High Court onder is there, but he has not produced any document in support of the so called son- inclusion except this bald stairmont. Further , accordingto MWI wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wall list.Puther the Hon'ble High Court luni held in its order dated 23-7-99 inW.P.No.7872 of 1991 , which is marked as an exlilbil, in which it is stated that it is clear that the 1987 settlement pras concerned with the temporary class IV employees who were paid scale wapes as per Bipartite Settlementwhile the 1988settlementdealt with daily wager inClass IV category- whowere paidwages daily on mutual agreement basis . In such circumstances, as rightly contended the Respondent are notjustified and combined the list of candidates cuvand under1987 setement and 1988 settlement since they formed two distinct and reperate classes and they count tout one class and their action undoubtedly amounts to violation ofArticle 14 of Constitution of India. Fardier, the averment of MWI and the statements in Counter Statament are contrary to the above and it is nothing but a desperate atteanpt to wriggle out the illegality committedor perpetrated by the Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Peditioner that as per deposition of MWI wait list unda Ex.M10 comprises of both messengerial and no- messagerial candidues. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywine settlement, it is not so in the cause of casuals. Therefore , both belongs to two differrot and distinct categories. But,ExM3 provides for the same borous to the casuals as in the case of temporary employees in the matter of absorption . Therefore, it is violative ofArticle 14 & 16 ofConstitution of India. Therefore, the Petitioner contended that preparation of Ex.M1 Mobely wait list is not inconformity with the instructions of Ex.M2 and non -preparation of seproste panels amounts to violation of circular. Secondly. it has not been prepared as per instructions in Ex . W2 circalar regarding projected vacancies for the period from 1987 to 1994. Purthermore , no wait list was released/ published even after the Court onder in WMP No, 1193291 in W.PNo.7872/91 directing the Respondent/Bank to release the list of successful candidates purulent to the first advertisemeat published in The Hindin dated 1-888 Furthermore , wait list under Ex . M10 doca not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, It is clear that Ex. M10 kas been prepared in violation ofinstructions and ceased to have the credibility attacked to the wait list. Above all , Ex. Ml was not produced at the time of conci liation proceedings held during the year 1997-96 held at Chemai and Machumi and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before thisTribunal mancing it as a confidential document . It is further contended on behalf of the Petitioner that though PART I-SEC. 3 ) 5034

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANA 13. 1929

of management witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . MI to MS. Above all , though the Respondent/ Bank has referred 10 voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period und lience evidence of Respondent/ Bank has ou application to the Petitioner's case The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined insder Sections 258 and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service oftheRespondent/Barik and they are entitled to the benetils under the provisions of I.D. Act . Lt is further contended on behalfofthe Petitioner that though some of the Petitioners in the connected 1.Ds. have not complicted 240 days , since the Respondent/Bank has noe taken into consideration and not included the Sundays and paid holidays as days un which the Petitioners have actually worked and bence, they have also completed 240 days in a period of 12 calendar months. He also relied on the rulings reported in 1985 TI LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL. BANKING CORPORATION wherein the Supreme Court has held thar the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with harumer , sickle ur pen but must necessarily comprehend all those days during which they were in the employment of the employer uтав for which he had heen paid wages either under express implied contract of service or by compulsion of statute, standing orders etc. It is further , argued that call letters produced by the Petitioner will clearty prove that the Respondent Bank has conducted the interview und selected the temporary employees who have reported 10 have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases . the Petitioners were in employmeat as sub- staff in early 1980s hat were denied funther engagendentl on account of settlements/lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar monchs and they are in age group of 40 to 50 years and for no fauilt of theirs , they find themselves stranded in life midstream. They have also not gainfully employed. In suelr circumstances , shis Tribunal has to pass an award in their favour.

10. But, as against this, the learned senior counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected disputes were pot in continuous service . Hence , the question of regular appointment'absorption does not arise at all and their engagement was not authorised . Further , the the Respondent/Bank has alleged that these pecitionerь were cogaged in leave vacancy , they have not been told al the time of initial appointmeol that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees, the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( 00) of the I.D. Act, 1947. Though the Petitioner's work in the Respondrou Bank is doatimuous and though the Petitioner has performed the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 2019LD. SINUTH VS. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that o employ workmen as ' badlies casuals or temporaries ' and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workında is illegal . " Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list unckerEx. M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlerbent, but in utter violation and in breach of it . Though clause 2(e ) of Ex . Mi states that candidates found suitable for permanent appointment will be offered appointment against existing/ futurevacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting, within the prescribied period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document show how be has arrived at the seniority and till date , it is a mystery as in who that senior vas and there is no documentary evidence in support of the verrment and also for the averment of MWI . Therefore, the termination of the Petitioner who was in regular service of the Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlerpent on absorption of temporary employees. Though the Respondent/Bank has producedEx. M5 which alleged to be a copy of minutes of conciliition proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18(3) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex. M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 andM1 ] interimlorders passed by High Court of Madras in WMP No.11932/91 in W.P. No.7872/91] ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of thePetitioner .Further , though the Respondent Management has examined two witnesses , the deposition 5035

भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

[भाग खण्ड 3(i) ]

categories namely ( i) those arrived at outside the conciliation proceedings under section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under section 18( 3 ). A settlement of the first categoryhas fimited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it willbe binding on all workroen of the establishment, Sven in case ofthe first category, if the settlement was reached with a representative union ofwhich the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workaen also." He further relied on the rulings reported in ATR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. VA STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the firee will of the parties and is apointer to there being goodwill berwoes them . When there is a dispute that the settlement is not bona Bde in nature of that it has been arrived at on account of fraud, misrepresentation or concealment of facts or ever corruption and other inducemeats, it couldbe subjectmatter ofyet another industrial dispute which an appropriateGovt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer trust he fair and reasonable ." Relying on all these decisiona, leamed counsel for the Respondeat contended that though it is alleged that they are not parties to the settlersent , since the Federation in which the Petitioner is also one among them, they bave entered into settlement with the bank and therefore, it is binding on the Petitioner . Forther, he argued that no union of the bank bas questioned the seulement and in such circumstances , it cannot be said that it is not binding on them and be is estopped from disputing the same

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is 'whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?" The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages ele. Hence, the Petitioner's contention against the reference made by the Govt. is not valid . Further , in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Stateinent

12. But, as against this on behalfof the Petitioner it is contended that mere wording of refernce is not decisive in the matter oftenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY . KOLLAM ALLAHOTEL AND SHOP WORKERS UNION VY. INDUSTRIAL TRIBUNAI , KOLLAM wherein the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18( 3 ) of the LD. Act , in lieu of the provisions of law and implemented by the Respondent Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further , they have concealed the material facts that the Petitionct was wait listed as per length ofhis engagement and could not he absorbed asbe was positioneddown in the seniority. The Respondent Bank was engaging temporary employees due to business exigency for the performance of duties as messenger. Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent Bank and the Federation were bonafide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questionedby any union and the settlements were bank level settlemets and operate throughout the country. Further, he relied un the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES 1.TD. Vs. INDUSTRIAL TRIBUNALA.P. AND OTHERS whereim under Section 12 ( 3 ) the union emered into a settlement with the management sotting the claim of 11 workmen and the workmen resigned from the job and received terminal benefits, but the workmen raised a ples before the Tribunal that they did not resign voluntarily.But the Andhra Pradesh High Court has beld that" In the absence of plea that the seulement reached in the course of conciliation is vitiated byfraud, misrepresentation or coercion, the settlement is binding on the workomen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 ] LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority woun will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage au individual enployee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even coruption or other inducements . But, in ne absence of such allegations , a settlement in the course of collective bargaining is entitled to dur weight and consideration." Learned counsel for the Respondent further relied on the rulings reported in 1997 1 LIJ 308 K.C.P. LTD. V1. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements we divided into two 5036

THE GAZETTE OF INDIA: AUGUST 4, 2007/ SRAVANA 13 , 1929 (PART 11-SEC. 3 ( i ) ) KeralaHigh Court has held that " mere wording ofreference is not decisive in the matter of tecability of a reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are disccmible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workmanto hardship involved in moving the machinery again." It further held that "the Tribunal should look into the pleading and find out the exact mature of pleading of the Petitioper to find out the exact asature ofdispote instead of refusing to answer the reference on merits. " Further, be argued that the Tribunal has got power to go into the questionwoother the Petitioner is to be retustated in service or not for which he relied on the rulings reported in 1998 LABIC 1614 VAN SAGNATHAN ORIENT PAPER MILLS VA INDUSTRIALTRIBUNAL & ORS, wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go bebind the terms of reference, but that does not mean that itcannot look into the pleadings of parties ." He also relial on the rolings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to donsider the order under reference in a technical mariner or a pedantic manner , but ahould consider the onder ofreferencel in a fair and reasonable manner. "He also argued that in Express Newspapers P. Ltd's case reported in AIR 1993 SC500 the Supreme Court has held that "the Tribunal has jurisdikation to consider all incidental matters also and the order of reference should not be construed in the mannerwhich would prolong the industrial adjudication , The Labour Court is expected to decide the real nature of disputes between the partics and with that object in view, it should consider the order of reference in a fair and reasonable juanner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court " Relying on all these decisions, the representative for the Petitioner gued that though in the reference, itis not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Tetitioners have been recrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is fentitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is twithout any substance.

13. I find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribunal is cotitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent Bank and Federation and since 1 is not questiobed by any of the unions of the Respondent Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time ofwait list has been exhausted , now the Petitioner cannot qucation thathe shouldbe reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VOLESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a tight of appointment in Govt : service in an existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made in view ofthe impending absorption of secam surplus staff and a policy decision has been taken to reduce the mumber of vacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative incrits. In which , the Supreme Court bus held that " in such cirownstances, derzial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 19976SCC584SYNDICATE BANK & ORS VS. SHANKAR PALL AND OTHERS wherein the Supreme Court has beld that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not Lo confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared und the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right becanse of inclusion of their names in the sand panel for permanent absorption in the services of the bank . Whatever conditional right theyhad cometo an end with the expiry of the panel . The claim of the Respondents as contained in the WPT, WBS thus, misconceived and therefore , the leamed Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VE UNION OF INDLA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mata fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation ofwait list was bucle with mala fide motive. Under such circumstances, after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANAAND ORS. VS. PLARA SINGH AND OTHERS wherein the Supreme Court has held that " now corting to the direction that all those adhoc sumporary employens who have continued for more than a year shouldbe [ भाग II-- 3( ⅱ) ]

5037

भारत कन राजपत्र समस्त 4, 2007 / श्रावण 13 , 1929

vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank .Further, he relied on the rulings reparted in AIR 1997 SCC 3657 HIMANSHU KUMARVIDYARTHI & ORS & STATE OF BIHAR AND ORS. sherein the Supreme Court has held that "they are temporary employees woriting on daily wages. Under there Circumstances , their discopurement from service cannot be construed to be a retrenchment under the LD. Act. The concept of retrenchment therefore , cannot be stretchedto such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts, their disengagement is not arbitrary." He further relied ou the rulings reported in 19943LLJ ( Supp) 754 wherein the Rajasthan High Court has held thai " Under Section 25G of the LD.Act retrenchment procedure following principle of "Last onme-first go ' is not mandatory but only directory, on sufficient groends showa , the employer is permitted to depart from the said principle retrenching seniors and retainingjuniors. " Though in this case, the Petitiones haus alleged that his juniors have been made permanent in banking service , he has not established with any evidence char his juniors were made permanent by the Respondent Bank.Any bow , if the Petitioner has shown mything, the Respondent/Bank is ready to establish the fact before this Tribunal thathe has wortred more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with COSLA .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC | SECRETARY, STATE OF KARNATAKA YS . UMA DEVI, the Supreme regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad- hoc/ temporary employee who has been contimsed for one year should be regaltrised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had akred by a back door; ( c) he was not cligible and qualified for the post at the time of his appointment; (d) buis record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders. None ofthe decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad-hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continumce extends to several years. Further , there can be no nele of thumb in such matters. Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who bave put in one year's service as far as possible and subject to fulfilling the qualifications , it camot be held that in each and every case, such a direction must follow irrespective of and without taking into socoont the other relevant circumstances and considerations . The reliefmust be moulded in each case having regard to all the relevant facts and circumstances of tout case. It cannot be a mechanical act but a judicious one. From this, the impugned directions must be held tobe totally untenable and unsustainubic. Thus, the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported 1997 IISCC 1 ASHWANI KUMAR AND OTHERS V. STATE OF BIHAR AND OTHERSwherein the FullBench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts."So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, ifthe candidate concerned is appointed in a irregular mamer or on ad-hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive δαι consideration and even if such purported regularisation or confirmation is given, it would be an exercise in fotility. It would amount to decorating a still born baby. Under there circumstances, there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore , remained nullity." Thandore, learned counsel for the Respondent contended that these teemporary employses were appointed onlydue to exigencies and they have not appointed against any regulu vacancy and they have only appointed in leave

Court has held that merely because a temporary employee or a chrual wage worker is continued for a time beyond the term of his appointment, be would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is not open to theCourtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nahue of their appointment, do not acquire any right. " Further, it has alsoheld that "it is not as if, the personwho accepts на tugageunt either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be trus that he is not in a positionto bargain -not at arms leugth since he might havebeen searching for some employment so as to eke out his livelihood and accepts winnever be gets. Bot on that ground alone, it would notbe appropriate to jettinon the constitutional scheme of appointment, perpetuste illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be pontinued permanently.By doing so , it will be creating mother mode ofpublic appointment which is pot permissible. " Purther, the SupremeCourt while laying down the law, bas clearly bold that "unless the appointment is in terms of the relevant 5038

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SFLAVANA 13 , 1929

[ PART --SFC . 311 ]

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wirit last and also settlements entered into berween the Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement for the number allotted to each individual in the wait list . Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bonafide in nature or it has been arrived at on account ofmalafide, misrepresentation , fraud or even corruption or other inclucements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bunk has got sanctioned posts for temporary employees to be absorbed , 1 find the Petitioners cannot claim for reinstatement or regülarisation in services of the Respondenu/Bank .

18. Further, the representative for the Petitioner contended that in a similar cases , chis Tribunal had ordered for reinstaterment with back wages and these disputes are also similar in nature and lience, the Petitioners are entitled for the same relief.

19. But , I find since the Supreme Court has held that temporary employees are intitled to claim any rights for regularisation, merely because they have complered 240 days ví vontinuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard in the changes in the policy decisions of the Ciovernment in the wake of prevailing matkel economy , globulisation , privatisation and nutsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him .Therefore , I find this point against the Petitioner .

rules and after a proper competition among qualified persons, the same would not confer any right on the appointee ..... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a titme beyond the term of his appointment, he would nor be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a đục process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS L'ID. AND OTHERS VS. SOMVIR SINGH, wherein the SupremeCourt has held that ' regularisation furthermюге, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further , inCDJ 2006 SC 395 MUNICIPAL COUNCH, SUIANPUR VS. SURINDER KUMAR, the SupremeCourt has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State" within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employeeswas bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 oftheConstitution of India would be void in law. Further, in 2006 2 LLN BY MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENTCORPORATION VSC PANDEY wherein the Supreme Court has held that "only because an employee had worked for more than 240 days of service by tjat itself would not confer any legal right upon hirdto be regularised in service ." The Supreme Court al 90 held that "the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy. globalisation, privatisation and outsourcing is evident , in view of the settled legal position, as noticed bereinbefore ."

PointNo. 2:

The next point to be decided in this case is to what relied the Petitioner is entidet?

20. In view of my foregoing findings that thePetitioner is a temporary employee and he is not entitled to be absorbed in regular service et phade permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him . No Costs.

21.Thus, the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him, corrected and pronouncedby me in the open court on this day the31st January , 2007)

K. JAYARAMAN, Presiding Officer

Witnesses Examined:

For the Petitioner

WW! Sri R. Ashokan

For the Respondent :

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is pot entitled in clain regularisation ofhis service. Further, when they have not been questioned the five settlements entered into between the RespondentBank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are mol entitledto dispute the same and they are estopped from doing so. Further , their prayer before the labour authorities was only to restore the wait list and also for appointmeal thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amendedby settlements, the Petitioners cannot now question either the preparation ofwait list of number allotted to them. Under such circuinstances , it cannot be questioned by the Petitioner. !

WW2 Sri V.S. Frambaram MWI Sri C. Mariappan MW2 Sri C. Ramalingam 50039

भारत की राजपत्र : अगस्ते 4, 2007/ श्रावण 13 , 1929

[ भाग खण्ड (ii) ]

WIB 6-3-97

Documents Maarked:

Ex. No. Date

Description

Xerox copy of the call lettrez from Madurai zonal office for interview of messenger post-I. Vekaragan .

WL 1-8-88

17-3-97

W19

Xerox copy of the paper publication in daily Thanthi based on Ex. MI .

Xerox copy of the service particolars- I.Velarurugan.

W2 204-88

26-3-97

W20

Xerox copy of the letter advising selection ofpart time Menini G. Pandi .

Хетох copy of the administrative guidelines issued by respondent/Bank for insplementation ofEx.MI .

31-3-97

W21

Xerox copy of the appointment order to Sri G. Pandi

24-4-91

Feb.2005

W22

Хегоx copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies.

Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle.

W4 1-5-91

13-02-95

W23

Xerox copy of the advertisement in the Hindo on dailywages based on Ex. W4.

20-08-91

Xerox copy of the Madurai Module Circular letter about engaging terpantry employees from the panel of wait list W5

09-11-92

W24

Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

15-397

09-07-92

W25

Хегоx copy of the circular letter ofZooal Office, Chennai about filling up of vacancies of messenger posts.

mecting Xerox copy of the miruses ofthe Bipartite W7 25-3-97

09-07-92

W26

Xero copy ofthe circular ofRespondent / Bank to all Branches regarding identification of messenger vacancies and filling than before 31-3-97.

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

WB 随

07-02-06

W27

Xerox copy of the instruction in Reference book on staff about casumis not to be engaged at office/ branchesto do messengerial work .

Xerox copy of the Local Head Office circular about conversion of part firbe employees and redesigante them as general attendants.

41-88

31-12-85

W28

Xeros copy of the service certificate issued by AmbatturBranch.

9-6-88

₩10

Xerox copy of the Local Head Office circular about appointment of treatporary employees in subordinate cadre Xerox copy of the service certificate issued by Ambattur branch.

Forthe Rexpanded Manag

10-6-88

W!!

Dete

Description

Ex. No.

Xerox copy of the service certificate issued by SIDCO Industrial Estate Brach.

ΜΠ

Хегоx copy of the schiculent.

17-11-87

10-4-97

Xerox copy of the senlement .

16-07-88

W12

Xerox copy of the service certificate isaned by MRL Branch.

Xerox copy of the sentiomet

27-10-88

96-97

₩13

09-01-91 Xerox copy of the settlement .

Xerox copy of the service certificate issued by Avadi Branch.

Хегох copy of the settlancar.

30-077-96

W14 NI

09-06-95

Xerox copy of the minutes ofconciliation proceedings.

MT 28-06-91 Хегох copy of the order in W.P. No.7872/91.

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

MB 15-05-98

WIS NI

Хегох copy of the order in O. P. No. 2787/97 ofHigh Court ofOrissa.

Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95.

10-07-99 Хетох copy of the order of Supreme Court inSLPNo. 3082/99. 6-3-97

W16

MIO N

Xerox copy of the wait list of Chemat Module.

Xerox copy of the call letter from Madurid zonal office for interview of messenger post-V. Muralikanoka.

25-10-99

MII

06-03-97

W17

Xerox copy of tise under passed in CMP No.16289 16290/99 in W.A. No. 1893/99.

Xerox copy of the call letter from Madurai zonal office for Interview of messenger post-K. Subburaj

3218 GU07-29 5040

THE GAZETTE OF INDIA: AUGUST 4. 2007/SRAVANA 13. 1929

[PART I-SFC. 3 ( ti ) ] नई दिल्ली , 23 जुलाई, 2007

hereby appoints the 1st August, 2007 as the date onwhich the provisions of Chapter IV ( except Sections 44 and 45 which have already been brought into force) and Chapter-V and VI lexcept sub - section ( 1 ) of Section 76 and Sections 77 , 78, 79 and 81 which have already been brought into force] of the said Act shall come into force in the following areas in the State of Rajasthan namely :.

मा.आ. 2188, कर्मचारी राज्य बीमा अधिनियम , 1948 ( 1948 का 34 ) की धारा -1 की उप धारा ( 3 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्रीय सरकार एतद्‌द्वारा । अगस्त, 2007 को उस तारीख के रूप में नियत करती है, जिसको उक्त अधिनियम के अध्याय- ( 44 № 45 धारा के सिवाय जो पहले से प्रवृत्त हो चुकी है) अध्याय- ई और 6 ( भारा 76 की उप धारा ( 1 ) और धारा -77.38 , 79 और 81 के सिवाय जो पहले ही प्रयुत्त की बा चुकी है । के श्रपवन्ध पंजाव के निम्नलिखित क्षेत्रों में प्रवृत्त होंगे , अर्थात्,

" नगर निगम लुधियाना की सीमाओं के अन्तर्गत आने वाले सभी क्षेत्र सिवाए उनके जिन पर कर्मचारी राज्य बीमा योजना पहले से लागू है ।"

The areas comprising the revenue villages of Pindwara [Excluding the areas already implemented Uls 1 (3) ofthe EST Act , 1948 ) . Jhadoli, Boelar , Ajari , Kadual, Veerwara, Parlaj, Sivera, Mori , Undra, Kerlapadar, Kajpur, Keshawganj , Aarnali , Sadalwa, Thandiveri . Malap , Varali, Kundal, Kalumbari , Sabela , Dhanga, Vagadari , Nawawas, Gadiya , Kojara , Janapur, Jhankar , Chawarli , Araasana in Tehsil Pindwara, Districı Sirohi .

[ सं. एस-38013/20/07-एस.एस. -1 ] एस. दो. जेलियर, कावुर सचिव

NewDelhi , the 23rd July,2007

[No. $-38013/21/2007-8.51 ] SD. XAVIER ,Under Secy.

नई दिल्ली, 14 जुलाई , 2007 S.D. 2188.-In excercise of the powers conferred by sub -section (3) of Section 1 of the Employees ' State rance Act, 1948 (34 of 1948) the Central Government linceby aypoints the Ist August, 2007 as the date on which the provisions of Chapter IV ( except Sections 44 and45 which have already been brought into force) and Chapter - V] [ except sub - section ( 1 ) of Section 16 and Sectrums 77.74, 79 and 81 which have already been brought into fordel of the said Act , shall come into force in the following art in the State of Punjab namely:-

कद, आ, 2190.-औद्योगिक विवाद अधिनियन , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , वेन्नई के पंचाट ( संदर्भ संख्या 132/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-07 को प्राप्त हुआ था ।

"Areas ithin the limits of Municipal Corporation Ludhieng except the areas already ontified under FST Scheme

[सं. एल-12012/424/1998 - आईआर ( बी-1) 」 अजय कुमार, डेस्क अधिकारी

New Delhi , the 19th July,2007 [No. S- 3801.3/20/2007-5.Σ. Π S. D. XAVIER, Under Secy.

नई दिल्ली, 23 जुलाई , 2007

5.0 . 2190-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. Nu . 132/2004) of the Ceneral Government Industrial Tribunal- cum-Labour Court , Chemmai as shows in the Annexure in the Industrial Dispute between the management of Staic Bank of India and their workngen, receivert hy the Central Governmeat on 19-7 고

[No.1-12013/424/1998 - IR(B-1 ) ) AJAY KUMAR, Desk Off i काआर. 2189, कर्मचारी राज्य बीमा अधिनियम, 1948 (194334) को धारा-1 की उप धारा ( 3 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्रीय सरकार एतद्‌द्वारा । करणस्न, 2007 को उस तारीख के रूप में स्थित करती है , जिसको उक्त अधिनियम के अध्धाय -44 व २ ९ धारा के सिवाय जो पहले से प्रवृत्त हो चुकी है ) अध्याय-5 और 6 बारा 76 की उप धारा ( 1 ) और धारा -77,78. 79और के सित्राथ जो पहले ही प्रवृत को बर चुकी है । के उपजन्य राजस्थान के निम्नलिखित क्षेत्रों में प्रवृत्त होंगे , अर्थात्, :-

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL - CUM - LABOUR COURT, CHENNAI

Wednesday, the31st January,2007 PRESENT:

"जिला-सि हां, तहसील पिष्हणाड़ा के राजस्व ग्रामों पिण्डवाड़ा [ पहले से ही कर्म राज्य श्रीया अधिनियम 1948 की धारा -1 ( 3 ) के तहत कार्यान्विः क्षेत्र को छोड़कर ] क्षम्दोली , बीलर , अजारी , कांदल , वीरवाड़ा, 'पसाई, सिवेरा, मूरी , कन्दछ , केरल्यपादर , राजपुरा, केशवगंज, उपम्ली. गद्दलत्रा , हण्डीवेरी , मालप , वरली , कुण्डाल, कालुम्बरी, सामेला , कांग, वागदरी , नवावाम्मन , गक्रिया , कोजरा , जनापुर , झांकर , ज्वरली, आराशना के अन्तर्गत आने वाले क्षेत्र ।"

[सं. एस-38013 /21 / 07 -एस.एस. - 1 ]

एस. दो. जेवियर , अवर सचिव

ShriK. JAYARAMAN, Presiding Officer InchustrialDispute No. 132/2004 [Principal Labour Court CGID No. 130/99] New Delhi , the 23rd July,2007

S.01 2189.-In excercise of the powers conferred by sub- section (3 ) of Section of the Employees ' State Insurance Act. 1948 (34 of 1948 ) the Central Governament

(In the matter of the dispute for adjudiation under clause( d) of sub - section ( 1 ) and sub - section 2 (4 ) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , between the Management of State Bank of India and their workmen ) 5041 [ भाग -खण्ड (ⅱ) )

भारत का राजपत्र अगस्व 4 , 2007 / आवण 13 , 1929

FEITWEEN

C.Rajendran ( deceased)

: Party /Petitioner

AND

: II Party/Management

TheAssistant General Manager, StateBank of India, Region-L,Tricky.

APPEARANCE

For the Petitioner

: Sriv.S. Eksmesm

Authorised Representative

For the Management M/ s.K.S. Sundar, Advocates

AWARD

under three categories namely A, B and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed fomust through Franch Manager of Palayamkottai branch. He was called for an interview by Committee appointed by Respondent Bank in this regard. Bus, they have not informed the result of interview and sien with regard to appointment . Bot, the Petitionerwas informed orally to join st the brunch where he initiallyworked as a class IV ermpinyce . From 1980, the Petitioner has been working as a temporary muassenger and sometime performing work in other branches also. While working on temporary basis in Pulayamakottai branch , another advertisement by the Respondeat/Bank wasmade regarding casual workers who were reported to be in service during the same period. While the Petition was working as such, the Manager of the branch informed the Petitioner urally on 31-3-97 that his services are not required any more and he need pot attend the office from 1-4-97. Hence, the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication.

1. The Central Government Ministry ofLabour, wie OrderNo. L -12012/424/ 98- IR (B-1( 1999-2-11أعضة has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has sken the dispute on its file as CGID No. 130/99 and issued notices to both parties . But the Petitioner has now led the Claim Statement before the Tamil Nadu Principal LabourCourt. After the constitution of this CGIT-cum- Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal haus mombered it as I.D. No.132/2004 and notices were issued to both partics and both parties entered appearance and filed their Claim . Statement and Counter Statement respectively.

2. The Schedule mentioned in that order is as follows:

"Whether the demand of the workman SitiC.Rajendran, wait list No. 630 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so, to what relief the said workman is entitle: "

3. The allegations of the Petitioner in the Claim Stalesnent are briefly as follows :

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as mesбелдет after an interview and medical examination . He was appointed on temporary basis in Palayamkottai branch from 1980. The Petitioner wis orally informed that his services were na more required . The non- employment of the Petitioner and others became subject- matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petition No. 542/87 whichwas caken up by the Supreme Comt . The Respondeot /Bank, in addition to its counter, filed a copy of settlement under section 18( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federating and the seirlement is with regard to absorption of Clasa IV Semporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration orice again and they classified tise workmen

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question ofregular appointment/ absorption does not arise . The engagement of Petitioner was not authorised The Petitioner is estopped from making claim as per Claim Statemeol The settlement drawn under provisions of Section 18( 1 ) and 18(3 ) of I.D. Act in lieu of provisions of law , retrenchment and implemented by Respondent/Bank The claim of the Petitioner is not bona fide and made with uberior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority.Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing frorom the year 1970 onwards. Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlemenis dated 17-11-87,16-07-88,07-10-88,9-1-91 , and 30-7-96.The said settlements became subject - matter of conciliation proceedings and minntes were drawn under Section 18(3) of 1.D. Act. In terms thereof, the Petitioner was considered forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 630 in wait list ofZonal Office, Trichy. So far 212 wait listed temporary candidates, out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave 5042

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13. 1929 [PART II-SK: 3 ( 1 )}

5. So the additional claim statement, the Petitioner comended that he was baving been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent /Bank continuously with deliberate and artificial breaks . Therefore, the Respondent/Bank is duty bound in regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Croristitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitionerbe engaged even in menial category, thus , the Respondent/ Bank imposed total ban for bis future enspkyment Even though there were sufficient oumber of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/ Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and funcies . Hence, the Petitioner prays that an award maybe passed in his favoшт.

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent . wherein it is stated all the settlements made by the hank with the State Bank of India Staff lederation were under Section 18 ( 1 ) of the Act and not under Section 1813 of the Act . As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Inven in the Writ Petitionbefore theHigh Court in W. P. No 7872 of 1991 , the Petitioner questioned the seatlement dated 27-10-88 and 9-1-91. It is false in allege that the settlements are contrary to the rights of the Perithuner . Hence , the Petitioner prays that an award maybe passed in his favour.

7. 10 these circumstances , the points for my consideration are :

(0) "Whether the demand of the Petitioner in Wait List No. 630 for restoring the wait list of temporary messengers in the Respondent Bank and consequential appointment thereupon as temporary messenger is justified!"

"To what relief the Petitioner is entitled ?"

PointNo. 1& 2:-

vacancies as and when it arose. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turjaround and claim appointment. Such ofthose temporary roployees who were appointed were engaged for more number of days and hence , theywere appointed. Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employers who were engaged for 240 days were tobe considered and under category ( B ) the temporагу employees , who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have opmpleted 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any contimous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seuurity in the wait list and it was also agreed thar wall list was to lapse in December , 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were 10 arise upto 31-12-94 . The Petitioner has do valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem wad due to the facts that all the aforesaid temporтагу employees were working in leave vacancies and notin regular permanent vacancies . In terms of aforesaid settlements , Oul of 652 wait listed candidates , 212 temporary employees were appointed and since the Petiboner was wait listed at 6:30 he was not appointed.The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlemeats directly or indirectly and his claim is liable to be rejected . Further, the said settlements were not questioned by any union so far and the settlements of hank level settlements and operated throughout the country. The Tamil Nadu Industrial Exhablishment ( Conferment of PatuaDent Status to Workmen) Act, 1981 does not apply to Responden Bank and this Tritonal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also dot correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against thewaited list oftemporary employees and vacancies for 1995-96 bar to he filled up against the wait list drawn for appoinment of daily wages/ casual labour . Further , for circle of C'hennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointnicot of temporary employees . After the expiry of wait list the Petitioner has no claim for penERICOL absorption. Hence , for all these reasons, the Respondent prays to discpiss the claim with costs.

8. When the matter was pending before this Tribunal at the time of evidence , it is reported that the Petitioвет died and it is posted for taking steps . But , the LRs of the Petitioner have not taken any steps to implead then as LRS in this dispute from 6-12-2004 They have also not filed any memo stating when the Petitioner died or what steps they have taken to implead them in this dispute.

5043

भारत का राजपत्र : अगस्त 4, 2007/ श्राषण 13, 1929

[ भाग II-खप 3( i) ]

the Tattartrial Disputes Act, 1947 (14 of 1947 ) , between the Management of State Bank of India and their workmac )

BETWEEN

Sci K. Genesan

: I Party/Petition

AND

: Party/Management

TheAssistant Goncal Manager

StateBank of India, Zonal Office Coimbatore.

APPEARANCES

For the Petitioner

: Sriv.S. Ettanberen. Authorised Representative 9. The reference made in this dispute is "Whether the demand of the workman for restoring the wait list of temporary meangers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified and for consequential appointment thereon as kampotary messenger. k is only a personal right claimed by the Petitioner and since it camat be said that the LRs of the Petitioner have no personal right to claim cumployment in the Respondent/Management, I find even in the event of reference being answered in favour of the deceased Petitioner , this petition cannot be allowed . Therefore, I find the claim is uibuted tund thus, it is dismisssed but without any cost

10. Thus the reference is disposed of accordingly. For the Management : M/s. K. S. Sundar , Advocates

AWARD

(Dictated to the P.A., transcribed and typed by him. corrected ad promomposed by me in the open court on this day the 314 Лапчигу . 2007. )

K. JAYARAMAN, PresidingOfficer नई दिल्ली , 19 बुलाई, 2007

1. TheCentral Goverment Ministry ofLabow, vide OrderNo. L- 12012/293/98- DR (B- 1) dated 01-02-1999has refered this dispote earlier to the Tamil Nadu Principal Labour Court, Cheamai and the said Labour Court bus uken the dispute on its file as COID No. 3/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement jespectively. After the constitution of this CGIT-cm- Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has mumbered it as L.D. No. 2/2004 ,

कर.आर. 2191 , औगिक विकार अधिनियम , 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डित के प्रबंचतंत्र के संबद्ध नियोकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औधोगिक अभिकरण चेकेई के पंचाट ( संदर्भ संख्या 2/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-07-2007 को प्राप्त हुआ था ।

2. The Schedule mentioned in that order is as fallows:

[चं. एल-12012/293/98 - आईमार( बी-[) ] अजय कुमार , डेस्क अधिकारी

New Delhi, the 19thJuly,2007

"Whether the demand of the workman Shri K.Gmesan, wait list No. 502 for restoring the wait list of temporary messengers in the catablishment of State Bank of India and consequential appointment thereupon temporary meuscager is justified? If so , to what relick the said wordatun is entitled?"

3. The allegations of the Petitioner in the Claim Statement tre briefly as follows:

80. 2191 pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Cemral Government bereby publishes ibe Award (Ref. No. 2/2004) of the Central Government Industrial Tribunad- cum-Labour Court , Chennal as shown in the Annexure in the Industrial Dispute between the management of State Bank of India and their worknen, received by the Central Gowczhiment on 19-7-2007.

[No. L-12012/293/98- IR (B-I) ] AJAY KUMAR, Desk Officer

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, CHENNAI

Workday, the 31st January , 2007 PRESENT

Sari K. JAYARAMAN, Presiding Officer

IndustrialDisputeNo. 2/2004

[Principal Labour Court CGID No. 3/99]

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in StateBank of India and he was given appointment as messenger afier an interview and medical examination.He was appointed on temporary basia at Melapalinyam brunch fra23-09-1981 . The Petitioner was orally informed that his services were no more required . The non-employmen ofthe Petitioner and others became subject matter before Supreme Court in the form ofWrit Petition fled by Stre BankEmployees' Union in Writ Petition No.542/87which was taken upby the Suparcose Court. The Respondent Bank, in addition to its counter , filed a copy of asttlement under section 18( 1 ) mached between managancat ofState Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified (In the matter of the dispute for adjudication under clauwe (d) of sub- section (1 ) and sub-section 2(A) of Section 10 of 5044

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13 , 1929

PART 11-SEC. 3 ( !)

relief of regular employment in Respondenu/ Bank with all amendant benefits

4. As against this . the Respondent in its Commer Statement alleged that reference made by the Grove for adjudication by this Tribunal sell is not mualainable . ThePetitioner was not in continuous service .Hence, the question of regular appointment absorption does not arise. The engagement of Petitioner was not authorised . The Petitioner is estopped frem making claim as per Claim Statement. The seulement drawn under provisions of Section 18( 1 ) and 18 (3 : of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is nut bona fide and made with ullkerior motive. The Petitioner concealed the material facts that hewas wait listed as per his length of engagement and would not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent Bank engaged the temporary employees for perfотполсе of duties as messenger and such engagements were prevailing from the year 1970 mmwards . Such of those employees who are claiming permanear absorption anci when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87-16-07-88 , 07-10-88 , 9-1-91 , and 30-7-96. The sakd settlements became subject matter of conciliation proceedings and minutes were drawn unker Section 18 (3) of1.D. Act . In warms thereof, the Petitioner was considered for permanent appointment as per bis eligibility along with similarly placed other temporary employees and the Petitioner was wait lested as candidate No. 501 in wait list ofZonal Office , Coimbatore . So far 211 wait listed temporary candidates, our of 705 wait listed tempuгагу employees were permanently appointedby Respondent/ Bank. U is faise to allege that the Petitioner worked as a temporarymessenger. The Petitioner was engaged only in leave vacancies as and when it aruse . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchimem provisions referred to above, cannot turn around and clairo appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Linder the settlement , employees were categorised as A , B and C. Considering their temporary service and subject to other eligibility criteria , under category(A) the temporary employees who were engaged for240 days were to be considered and under category (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 ог minimum 70 days aggregate temporary service in any continuous block of 36 calendar roooths were to be considered. As per clause 7, the length of tempurary service was to be considered for seniority in the wait tist and it was also agreed that wait list was to lapse in December, 1991 and the cut off dare was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The the workmen under three categories namely A, B andC. Though the classification was unreasonable , the RespondentBank brought to the notice of the Petitioner aboutthe interview to be held through advertisements. The Petitioner also submitted his application in the prescribed format through Branch Manager of the Melapayalaca branch. He was called for an interview by a Committee appointed by Respondent/Bank in this regard, But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner waAS informed orally to join at the branch where he initially worked as a class TV employer . Frum 23-09-1981 , the Petitioner hau been working as a temporary messenger and some times performing work in other branches also . While working of temporary basis in Melapalayam branch, another advertisement by the Respondent/Bank was made regarding cascal workers who were reported to be in service doring the same period. While the Petitioner was working as inch , the Manager of the brunch informed the Petitioner crally on 31-3-97 that his services are no required any more and he need not attend the office from 1-4-97. Hence, the Petitioner raised dispute with regard ta bis non- mployment. Since the conciliation ended in failure, the matter was referred to this Tribunat for adjudication. Though reference was sent to this Tribunal, the refierende framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt .to reconsider the reference and the Petitioner requested عطر Respondent Bank to continue to engage him in service as obtained prior to31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the member of days worked by Petitioner were treated as of no consequensor, since socording to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which bis services and number of days worked by him after interview de not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent Bank before the concillation officer . Therfure , theRespondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 25G & 25H of the LD . Act. The termination ofthe Petitioner is against the provisions of Para522(4) of Sastry Award. Even though the settlemeal speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regulariting sccording to their whims and fancies . The Respondent Bank has also not observed the instructions regarding gount of increamscants , leave, medical benefits etc. to thetemporary workomen which amounts to violation of relevant provisions of circular . The Respondent Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under idstunned mange or by both which ampante to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant 5045

भारत का राजपत्र अगस्त 4, 2007/ श्रावण 13 , 1929

[ भाग खण्ड (ii) ]

filling up the vacancies with the persons other than wit listed workmen according to thelt whims and fancies. Heut, the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to theCounter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India StaffFederation ware ander Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recrammat rules of the Respondent/Bank, recnítmeal ofclass IV staff in theRespondent/Bank is in accordance with the instruc tions laid down under codified circolars of the Respon- dent /Bank. Even in the Writ Petition before the High Court inW.P.No.7872 of 1991 , the Petitioner questioned the actile ment dated27-10-88 and 9-1-91. Die false to allege that dre settlements are contrary to the rights of the Petitioner. Hence, the Petitioner patys that anawind may be passed in hisfavor .

7. In these circumurtances, the points for my consid aration are

( "Whether the demand of the Petitions in Walt List No. 502 for restoring the wait list ofleam- porary messengers In the Respondent/Bansk and consequential appointment thereupon as temporky messenger is justified?

(1) "To what relief the Petitioner is entitled?" PointNo. 1:

8.When the matter was taken op for bearing, it is reported by the representative of the Petitiouer that he is not appearing for the Petitioner and the Petitioner bas not appeared before this Court for further proceedings and hence , the Petitioner was called absent and set exparte.

Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were DO regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regulat permanent vacancies . In terms of aforesaid settlements, out of 705 wait listed candidates, 211 semporary employees were appointed and since the Petitioner was wait listed al 501 he was not appointed. The said settlements were bona fudewhich were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any unica so far and the settlements ot bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act , 1981 does not apply to Respondent/Bank and this Tribunal hus no jurisdiction to entertain such plea. It is not correct to $1) that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct lo say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94were filled up against the waited list of temporarу employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment ofdailywages/ casual labour. Further, for circle of Chennai wait list of dailywages was not finalized and hence not published and there is only one wait list for the appointment oftemporary employees .After the expiry of wadt list, the Petitioner has no claim for permanent absorption. Hence, for all these reasons, the Respondent prays to dismiss the claim with costs.

9. In this case, the Petitioner alleged that he was appointed byRespondent/Bank during 1981 and he wa kaminated during the year 1966-87 und again worked as temporary messenger and sil of a sudden, on 31-3-97he was terminated foon service without any notice or notice of compensation. Since he has conttiamously worked for more than 240 days in a continuous period of 12 calender mooths, he is entitled tothe benefits ofSection25F ofthe I.D. Act. But, no evidence was adduced on behalf of the Petitioner nor produced any doctanent to establish his contention. The Petitioner has not appeared before this Tribunal to substantiate his claim. As such, I find the alle gations of the Petitions are not established before this Tribunal.Hence, I find the Petitioner is not entitled to any reliefza claimed by him. No Costs.

10.Thus , the reference is disposed of accordingly.

(Dictatedto the P.A. , toucribed and typedby him corrected, and pronounced by me in the open Court na this day the 31st Jannary, 2007.)

K. JAYARAMAN , Presiding Officer 5. In the additional claim statement, the Petitioner sanscoded that he was havingbeen sponsored by em ployment exchange and having undergone medical exami- nation, the Petitioncs bus fulfilled the criteria set out by the Respondent/Bunk for selection of candidate for appoint- ment in the post of messenger and other class IV post.He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continnously with deliber- ase and artificial breaks . Therefore, the Respondent/Bank isduty boundto regulmise the services of the Petitioner вя he has acquired the valuable right enshripad in the Consti- rurion of India. In the year 1998 , the Respondent/Bank has 15sued circular to the effect that under no circumstances. wait listed persons like the Petitioner be engaged even in menial category, thus the Respondent Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV categiry. theRespondent/Bank IV category, deliberately delayed in filling up the vacancies by the wait listed workmen with pherior motive. The Respondent/Bank jus boca arbitrarily 5046

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANA 13, 1929

PART II-S3 (ii ) नई दिल्ली, 19 जुलाई , 2007

2. The Schedule mentioned in that order is as follows:

"Whether the demand of the workman Sari P. S. Mohanasundaram , wait list No.361 for restoring the wait list of temporary messenger's in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so, to what relief the said workman is entitled?"

! कर. आर. 2192-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक वांधिकरण चेत्राई के पंचाट ( संदर्भ संख्या 281/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुम्मा था ।

[सं. एल-12012/628/98 - आईबार ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी NewDelhi, the 19th July,2007

3. Though several notices were issued, no Claim Statement was filed on behalf ofthe Petitioner either before thePrincipal LabourCourt or before this Tribuzal and there is no representation on his behalf. Hence, the Petitioner was called absent and set ex - parte . Further , no meno of objection was filed on the side of Respondent, in spite of adjourning the case for several hearings . Hence , the II Party/ Management was also called absent and set ex -parte.

4. In these circumstances , the points for my consideration are :

S.0 2192,-In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 281 / 2004) of the Central Government, Industrial Tribul-cum- LabourCoun , Chonai as shown in the Amexure , in the Industrial Dispute between the numagement ofSute Bank of India and their workmen, received by the Central Governmcaton 19-7-2007.

[No.L-12012628/96- IR(B-T) ] AJAY KUMAR, Desk Officer

"Whether the demand of the Petitioner in Wait List No. 361 for restoring the wait list of temporary messengers in the Respondeat/ Bank and consequential appointment thereupon as temporary messenger is justified? "

(ii) "To what relief the Petitioner is entitled?" Point No, I and 2 :-

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, CHENNAI Wednesday, the 31st Jary,2007

PRESENT:

5. As Lhave already stated in spite of several notices , Petitioner has not appeared before this Court noe filed Claira Statement and the II Party Management also has not filed any merno of objection . Therefore , both parties are called absent and set ex - parte . In view of the above, I find bota parties are not interested in pursuing this dispute . Hence, I find the Petitioner is not entitled to any relief. No Costs.

Shri K. JAYARAMAN, Presiding Officer Industrial Dispate No. 281/2004 [Principal Labour Court CGID No.29499]

6.Thus, the reference is disposed of accordingly.

(Dictated to the P.A. , transcribed and typed by him, corrected and pronounced by me in the open Court on this day the31st Januaгу .2007)

(In the manner of the dispute for adjudication under clause(d) ofsub-section ( 1 ) and aub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen)

K. JAYARAMAN, Presiding Officer BETWEEN

नई दिल्ली, 19 जुलाई, 2007

Sri P. S. Mibhanasundaram

: 1 Party /Petition

AND

: Расту/ тареment

TheAssistant General Manager , StateBank of India, Z. O. Cheulai .

APPEARANCE

For the Petitioner

: None

का.आ. 2193.-औधोगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार , स्टेट बैंक ऑफ वृण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण पेई के पंचाट ( संदर्भ संख्या 21/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

: None

Forthe Management

AWARD

[ सं. एल-12012/274/98-आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 19th July, 2007 1. The CentralGovernment Ministry ofLabour , vide Onder No. 1-12012/628/98- IR (B -J) dated 3-5-1999 hat -referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its files CGID No. 294/99 and issued notices tobath parties.

S.O. 2193.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 21 / 2004) of the Central Govertroent Industrial Tribunal-cum- 5047 भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

| भाग -खण्ड 3 (0 ) ]

justified? If so, to what relief the said worden is entitled ?

Labour Court, Chennai as shown in the Annexure in the Industrial Dispute berween the management of State Bank of India and their workmen, received by the Central Govermenton 19-7-2007.

[No. L-12012/274/98- IR (B-I))

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, CHENNAI

Wednesday, the 31st Jamary , 2007

PRESENT:

Stri K. JAYARAMAN, Presiding Officer

Tudustrial Dispute No. 21/2004

[Principal Libor CoatCGD No. 6/99]

In the mater ofthe dispute for adjudation under clause (d) of sub- section ( 1 ) and sub- section 2 (A) of Section 10 of che Industrial Dispules Act, 1947 ( 14 of 1947 ), between the Management of State Bank of India and their workmen)

BETWEEN

: Party/Petitions

SciP Chandren

AND

: IIParty Management

The Assistant General Manager, State Bank ofIndia , Z. O. Coimbatore

APPEARANCE

For the Petitioner

Sri V. S. Ekambaram , Authorised Representative

For the Management :M/ s , K.S. Sundar, Advocates

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/274/98- IR (B- 1) dated05-02-1999 has referred this dispute carlier to the Tamil Nadu Principal 1abour Court , Chennai and the said Labour Court has taken the dispute on its file as CG1D No. 69/99 and issued notices 10 both parties .Even though both sides entered appcance the I Party has not filed Claim Stateroent and he has not appeared before the Principal Labour Court. After the constitution of this CGIT Cum Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has mumbered it as 1.D. No. 21/2004 and issued notices to both parties . In spite of adjourning the case for several hearings, the Petitioner has Tot eled Claim Statement . Hence, the Petitioner was called ahsent and set cx-parte .

2. The Schedule mentioned in that order is as follows:

3. On behalf of the Respondent memo of objection Counter Statement was filed, wherein it is alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in contimous service . Hence, the question of regular appointment/absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from rasking claim as per Claim Statement. The settlement drawn underprovisions of Section 18 ( 1 ) and 18( 3 ) of LD. Act in lieu of provisions of law, retrenchmeal and implemented by Respondent/Bank. The claim of the Petitioner is not bone fide and made with ulterior motive. The Petitioner concealed the rasterial facts thathe was wait listed as per his beugth of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the RespondenuBank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permusent absorption and when their case was espousedby State Bank of India Staff Federation which resulted in five settlerpents dated 17-11-1987, 16-07-1988, 07-10-1988,9-1-1991 and30-7-1996.The said settlements becurde subject matter of conciliation proceedings and minutes were drawn under section 18(3) of L.D. Act . br terms thereof, the Petitioner was considered for peгштем appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No.294 in wait list of Zonal Office , Coimbatore. So far 211 wait listed temporary candidates , out of 705 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false bo allege that thePetitioner worked as a temporary messenger. ThePetitioner was engaged only in leave vacancies as and when it arose. When the Petitioner having subminted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turu around and clain appointment , Such of those temporaгу employees who were appointed were cogaged for того number of days and hence, they were appointed. Under the settlement, employees were categorised as A, BandC. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporaгу employees who were engaged for 240 days were to be considered and under category ( B ) the tempогагу employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minionum 70 days aggregate tempoтагу веrviсе in аnу continuous block of36 calendar months were to be considered . As per clause 7, thebength of termporary service was to be considered for senjority in the wail list and it was also agreed that weit list was to lapse in December , 1991 and the cut off date was Whether the demand of the workman Shri P. Chandran, wait list No.294 for restoring the waj list of temporary messengers in the establish- ment of State Bank of India and consequential appointment thereupon as temporary messenger is

3219 G117-30 5048

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVAΝΑ 13, 1929

[PART -SEC 3 (1 ) ]

नई दिल्ली, 19 जुलाई , 2007

कर.आ. 2194.--औद्योगिक विवाद अधिनियम, 1947 ( 1947 फन 14) की धारा 17 के अनुसरण में , केन्द्रीय सरकार, स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोक्कों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अभिकरण श्रम न्यायालय , चेत्रई के पंचाट ( संदर्भ संख्या 220/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[सं. पल-120] 2/346/98 - आईआर ( बी-1 ) ) अजय कुमार, डेस्क अधिकारी

NewDelhi , the 19th July, 2007

S.O. 2194.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Governmenthereby publishes the award (Ref. No. 220/ 2004) of the Central Government, Indourial Tribunal -cum- Labour Court, Chennai as shown in the Annex

Industrial Dispute between the quan of India ani th StateBank .... workmen , received by the Central varement on 19-7-3007,

[No.L- 12012/346/98 - IR ( D- 1) ] AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, CHENNAI

Wednesday , the 31st Jannary , 2007 PRESENT: K.JAYARAMAN , Presiding Officer IndustrialDispute No. 22/2004 extended up to 31-3-1997 for filling up vacancies which wer to arise upto 31-12-1994. The Petitioner has novalid and enforceable right for appointment . The Respondent bund implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of foresaid settlements, out of705 wall listed candidates, 211 temporary employees were appointed most since the Petitioner was waid listed at294 he was not appoinmed. The said sectioments were boom fidewhich ware the only workable solution and is binding on the Petitions. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the mid settlenerus were not questioned by any union so far andthe settlements of bank level settlements and operated throughout the county. The Tamil Nadu Industrial Establishment (Conferment ofPermanent Status to Workmen ) Act, 1981 does not apply to Respondant/Bank and this Tribunal has no jurisdiction to entertain such ples. It is currectto say that documents and antity of Petitioner was verified before the Petitionne was engaged. It is also not correct to say that the Petitioner was discharging the work of petmurient messcoger. As per settlements, Vacancies opto 31-12-94were filled up against the wind list of temporary employees and vacancies for 1995-96has to be filled up against the wait list draws for appointment of dailywages/ casual labour. Further, for circle of Chennai wait list of dailywages was not finalized and hence not published and there is tonly one wait list for the appointment of tetaporary employees.After the expiry of wait list, the Petitioner has no claich for perusanent absorption. Hence, for all these reasons, the Respondent praya to dismiss the claim with costs.

Principal Labour Court CGID No. 58/99] 4. In these circumstances , the points for my consideration are :

( In the matter of the dispute for actjudition under clause( d ) of sub-section ( 1 ) and sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen)

HETWEEN

Sri K. Velu

: Party/Tetitioner

AND

"Whether the demand of the Petitioner in Wait List No. 294 for restoring the wait list of temporary messengers in the Respondent Bank and consequential appotatment thereupon as temporary messenger is justified?"

: Party /Management (u) "To what relief the Petitioner is entitled?"

PointNo.1:

TheAssistant General Manager, StateBank of India . 2.0 . Cheamai .

APPEARANCE:

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative

For the Management M/s . K.S. Sundar, Advocates

AWARD

5. When the matter was taken up for enquiry , it is reported by the special representative of the Petitioner that he has no instruction from the Petitoner and he is not appearing for the Petitioner and bence , the Petitioner was called abient and set exparne. Since the Petitoner neither appeared before this Court not filed the Claim Statement to substantiate his claim, I find the Petitoner is not interested in pursuing this dispute and hence, he is not entitledto any relief:No costs.

6.Thus , the reference is disposed of accordingly.

(Dictated to the P.A. , transcribed and typed by him corrected and pronouncedby the in the open court on this day the 31st January, 2007)

K. JAYARAMAN, PresidingOfficer

TheCentral Government, Ministry ofLabour vide Order No. L- 12012/346/98 - IR (B -1) dated 3-2-1999 has referred this dispute carlier to the Tamil Nadu Principal Labour Court, Cheanai and the said Labour Court has taken the dispute on its file as CGID No. 58/99 and issued notices toboth parties. Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution of this CGIT Cum Labour Court, the 5049 [ भाग II साप्पा (ⅱ) ]

भारत का राजपत्र अगस्त 4, 2007 / 13 , 1929

said dispute has heen trasferred to this tribunal for ndjudication and this tribunal bus sombered it as LD. No. 230/2004.

2. The Schedule mentioned in that order is as

follows:-

"Whether the demand of the workman Shri K. Velu, wait list No.745 for restoring the wait list of temporary messengers in the establishment of State Bank of Indiaand consequential appointment theroupon a temporary messenger is justified,? If so, towhat relief the said workanum is cutitied? "

3.The allegations of the Petitioner in the Claim Statement are briefly as follows:-

Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bmk took up an unreasonable shared tisat the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in tempotary services after the settin The Petitioner was not aware of settlement by which bús services and mumber of days worked by him after interview donot merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bankbefore the conciliation officer .Therefore, the Respondent's action in not absorbing him in regular actrice is unjust and illegal. Further, the settlements ac repugnant to Section 250 & 25H of the ED. Act. The termination of the Petitioner is against the provisions of para 522(4) of Santry Award. Even though the settlement speaks about three categorica only 4single wait list has been prepared and the Respondent/ Bank has been regularising mocording to their whims and fancies. TheRespondent/ Bank has also not observed the instrictions regarding grout of increments, leave, medical benefits exc, to the temporary workmen which amochals lo violation of relevant provisions of circalar. The Respondent/Bank cagaged the Petitioner and attracted the sume work either by payment of petty cash or by duocting himto work under assumed name or by both which amounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict scaiority andwithout any rationale. Hence, for all these reasons the Petitioner prays to gram relief of regular employment in Respondent/ Bank with all attendant benefits.

4. As against this, the Respondent in its Counter Statement alleged that reference made by the Govt -for adjudication by this Tribunad itself is not maintindible. The Petitioner was not in continous service . Hence , the question of regular appointment / absorption does notarice The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim us pez Claim Statement. The settlement draw under provisiστις οἱ Section 18 ( 1 ) and 18(3) of LD. Act in lieu ofprovisions of Law, retrenchment and implemented by Respondent/Rank. The claim of the Petitioner is not boum fide and made with ulterior motive. The Petitioner emended the courtorial facts thut be was wait listed as per his lengtit of engagement and could notbe absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those czupłoyces who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-07-88,07-10-88,9-1-91 and30-7-96.The said settlements became subject matter of conciliation proceedings and minutes were drawn under section 18(3) ofLD . Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 739 in waitlistof The Petitioner was sponsored by Employment Exchange for the post of sab staff inClass IV cadre in State Bank of India and be was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Vandavusi branch from 01-01-1985. The Petitioner was orally informed that his services were no mare required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by Stale Bank Employees' Union in Writ Petition No.542/87which was taken up by the Supreme Court. The Respondent/ Hautk, inaddition to its counter, filled copy of settlement under section 18( 1 ) reached between aningement ofState Bank of India and All India State Bank of India Stuff Federation and the settlement is with regard to absorptiση of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the woritmen under three categories samely A, Band C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Vandavasi branch. He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointmeat. But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 01-01-1985, the Petitioner has been working as a komponry messenger and sonte times performing work in other branches also . While working on temporary basis in Alatur branch, another advertisement by the Respondent/Bank was made regarding casual woriters who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from1-4-97 . Hence, the petitioner raised a dispute with regard to him non employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication. Though reference was sentto this Tribend , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt to reconsider the reference and the Petitioner requested the Respondent/ 5050

THE GAZETTE OF INDIA: AUGUST 4, 2007 / SRAVANA 13. 1929 [PART1 ] SLC . 3 ? )

employees . After the expiry of wait list , the Petitioner has no claim for perinacent absorption . Hence , for all these reasons, the Respondent prays to dismiss the claim with cosis.

5 in the addicional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Peritioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuuusly with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the servives of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India In the year 1998, the Respondent/Bank has issued a circullar to the effoct that under no circumstances , want listed persons like the Petitioner be engaged even in menial category , thus, the Respondent Bank imposed total ban for his future employment . Even though there were sufficient number uf vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respuntlet/Bunk has been arbitrarily filling up the vacancies with the persons other than wail listed workmen according to their whims and lancies .Hence, the Petitioner prays that an award may be passed in his favour .

6. Again , the Pelilivner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federa hun were under section 18 ] ) of the Act and ant under section 18 ( 3 ) of the Act . As per recruitment tules of the Respondent/Bank, recruitment of class V staff in the Respondent Bank is in accordance with the instructions and down under codified circulars of the Respondent/Bank...Even in the Writ Petition before the High Court in W.P. No.7872 of 1991 , the Petitioner questioned the settiement dated 27 10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner .Hence , the Petitioner prays that an award may be passed in has favour .

7. In these circumstances , the points for my consideratikin uте .

(1; "Whether the demand of the Pentioner in Wait List No. 745 for restoring the wait list of temporary messengers in the Respondeu Bank and consequential appointment thereupon as temporary messenger is justified?"

i "To what relief the Perisiuner is entitled?"

Print No.1;.

Zonal Office, Chennai . So far 357 wait listed temрогвгу candidates , out of 744 waitlisted temporary employeeswere perinaprotly appoimed by Respondent/Bank. It is false to allege that the Petitioner worked as a lemporary Messenger . The Petitioner was engaged only in leave vacancies as ant when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot tumi around and claim appointment. Such of those tempoгaту employees who were appointed were engaged for more number of days and hence , they were appointed. E'nder the settlement, employees were categorised as A , B andC. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C ) the temporary employees who have complered 30 days aggregatе tеmроrагу service in any calendar year after [ -7-75 or minimum 70 days aggregate temporary service in any courtimuous blockof36 calendar months were to be considered. As per Clause ?, the length of temporary service was to be considered for seniority in the waje list and it was also agree that wait list Was En-Japse in December , 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implentented the voluntary retirernent scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regulat permanent vacancies . In terms of aforesaid settlements , cur of 744 wait listed candidates . 357 temporary employees were appointed and since the Peticioner was wait listed at 739 he was not appointed. The said settlemeals were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to he rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country The Tamil Nadu Industrial Establishment (Conferment ofPermanent Status to Workmen) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say thardocuments and identity of Petitioner was verified before the Petitioner was engaged . It is also not correctto say than . the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies uplo 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual Inbour. Further , for circle of Chennai wait list of duily wiges was not finalized and hence not published and there is only one wait list for the appointment of temporary

8. When the matter was taken up for hearing, it is reported by the representative of the Petationer that he is not appearing for the Petitioner and hence. the Petisinner was called absent and set exparne .

5051

भारत का राजपत्र अगस्त 4 2007/श्रवण 13 , 1929

[भाग -खण्ड 3 ( ii) ]

the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Maanagement of State Bank of India and their workmen)

BETWEEN

: 1 Party/Petitioner

Sri S. Rangaraju

AND

: IIParty /Management

TheAssistant General Manager . StateBank of India, Region- I Trichirapalli

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative

M/s . K.S. Sundar,

For the Management

Advocates 9. In this case, the Petitioner alleged that he was appointed by Respondent Bank during 1985 and he was cerminated during the year 1986-87 and again worliced asa Remporary messenger and all of a sudden, on 31-3-97 he was terminated form service without any notice or notice ofcompensation . Since he has continuously worked for more than 240 days in a continuous period of 12 calendar cmonths , he is cotitled to the benefius of Section 25F of the LD . Ad. But , no evidence was adduced on behalf of the Petioner nor produced any document to establisb bis contention . The Petitioner has not appeared before this Tribunal to substantiate bis claim . As such , I find the allegations of the Petitioner were not established before this Tribunal . Hence, I find the Pentioner is not entitled un any relief as claimed by him . No Costs.

AWARD

10. Thus , the reference is disposed of accordingly .

(Diccared to the P.A.. transcribed and typed by hint corrected and pronounced by me in the open count um this clay The 31st January, 2017.)

K. JAYARAMAN, Presiding Offic

नई दिल्ली , 19 जुलाई , 2007

1. The Central Government Ministry ofLabour , vide Order No. L- 12012/27/99 - IR ( B -1) dated 10-05-1999has leferred this dispute carlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 255/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution of this CGIT Cum Labour court, the said dispute has heen transferred to this Tribunal for adjudication and this Tribunal bas mmbered it as LD.No. 168/2004.

2. The Schedule mentioned in that order is as follows:-

का.आ. 2195,-औद्योगिक विवाद अधिनियम, 1947 ( 1947 क 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार, स्टेट बैंक अॅफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बांचे , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योनिक अधिकरण चेनई के पंचाट ( संदर्भ संख्या 168/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[में एल -12012/27/99- आई मार ( बी -1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delbi , the 19th July ,2007

"Whether the demand of the workman ShriS. Rangaraju, wait list No 419 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as teniyorary messenger is justified ? If so , to what relief the said workoman is entitled ? **

3. The allegations of the Petitioner in the Claim Statement are briefly as follows:

$.0. 2195.-In pursuance of Section 17 of the todustrial Disputes Act , 1947 ( 14 of 1947), the Cenaral Government hereby publishes the award ( Ref. No. 168/ 2004) ofthe Central Government, Industrial Tribunal - ceo- Labour Court, Chennai as shown in the Annexure in the Industrial Dispute between the management of StateBank of hudia and their workmen , received by the Central Government on 19-7-2007.

[No. L-12012/27/99- IR (B - I) ]

AJAY KUMAR , Desk Office

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

CHENNAI

Wednesday, the 31st January, 200т

PRESENT:

Shri K. JAYARAMAN , PresidingOfficer

Industrial Dispute No. 168/2004

ĮPrincipal Labour Court CGID No.255/99]

The Petitioner was sponsored by Employment Lixchange for the post of sub staff in Class IV cadre in State Bank of Indica and he was given appointment as merevenger after an interview and medical examination . He was appointed on temporary basis at Tirumayam branch from 06-08-1982. The Peritioner was orally informed that bis services were no more required . The non- comployment of the Petitioner and others become subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No.542/87which was taken up by the Supreme Comert . The Respondent/ Bank, in addition to its counter , filed a copy of settlement under section 18( 1 ) reachedbetween hartagerment of Stale Bank of India and All India State Bank of India Staff Federarion and the settlernent is with regard to absorption of Class IV remporary workmen who wees nie employment after 1985-86 were classified in the settlerment wus under consideration once again and they classified the workmen under three categories namely A, B and C. (In the matter of the dispute for adjudication under clause ( d) of sub- section ( 1 ) and sub- section 2 (A ) of Section 10 of 5052

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13, 1929 [PART II-SEC. 3( 0) | Though the Classification was unreasonable , the RespondeauBank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Tinımayam pranch . He was called for an interview by a Commitee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment. But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. From 6-8-1982, the Petitioncs has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Tirumayam branch, another advertisement by the Respondent Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petirioпет orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the petitionet raised a dispute with regard to is מנת- employment . Since the conciliation ended in failure. the matter was referred to this Tribunal for adjudication , Though reference was sent to this Tribunal , the reference frammed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt to reconsider re reference and the Petitioner requested the Respondent Bank to continue to engage him in service as obtained por to 31 347 and an regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , silve according to the Respondent Bank , it engaged the Petitioner only in temporary services after the settlement , ThePetitioner was not aware of settlement by which bis services and mumber of days worked by him after interview do cut merit consideration . The Petitioner was not a party 10 the settlement mentioned by the Respondent/Bank before the conciliation offiver . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait us has been prepared and the Respondent Bank has been regularising according to their whims and fancies.The Respondent/ Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. tofthe temporary wurkmen which amounts lo violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the samework either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infroitics and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent Bank with all attendantbenefits ,

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Trihunat itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointmentVabsorption does not arise. The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as pet Claim Statement. The settlement drawn under provisions of Section 18 ( 1 ) and 18 (3 ) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Peritioner is nor bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was wair listed as yer his length of engagement and could notbe absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permaneas absorptiva and when their case was espoused by State Bank of India StaffFederation which resuhed in five settlements dared 17 11-87, 16 07-88,07-10-88, 9-1-91 and 30-7-96. The said settlements beearne subjcel matter of conciliation proceedings and nainutes were drawn under section 18(3) of I.D Act. In terms thereof, the Petitioner was considered fot permanent appointinent as per his eligibility along with similarly placed other temporary employees and the Petitioner was wain listed as candidate No. 419 in waitlistof Zonal Office, Trichy . So far 212 wait listed temporary condidates, out of 652 waitlisted temporary employeeswere permanently appointedby Respondent/Bank. It is false to allege that the Petitioner worked as a temporary Messenger. The Petitioner was engaged only in leave vacancies us and when it arose. When the Petitioner having submitted 10 selection process in terms of settlements drawn as per retrenchument provisions referred to above, cannot tum around and claim appointment . Such of those temporary employees who were appointed were engaged for more durober of days and hence , they were appointed . Under the seulement, employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria . under category ( A ) the temporary employees who were engaged for 240 days were to be considered and under category ( B ) the temporary employees who have completed 270 days aggregare temporary service in any continuous block of 36 calendar months and under category ( C ) the temporary employees who completed 30 days aggregate temporary service in any calendar year after 1-7-75 or aninimum 70 days aggregate: temporary service in any continuous block of36 calendar murnthswere tobe onnsidered . As per Clause 7, the length of temporary service was to be considered for seniority in The wait list and it was also agree that wair list was to lapse in December , 1991 and the cut off date was extended uptro 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has on valid and enforceable right for apointment . The Respondent had implemented the voluntary retirement scheme and even the permanent [ भाग -वाण्ड 3( i) ]

vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all olesand Teniporary employees were working in leave vacancies and not in regular permanacancica, in jerms of aforesaid settlements , out of652 walt linted candidases , 212 semporary employees were appointed and since the Petitioner was wait listed at 419, he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on Ibe Petitioner. The Petitioner is estopped from Questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent /Bank and this Tribunal bas no jurisdiction to entertain such plea . It is not correct to say that documents and identity ofPetitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 bas to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Parther, for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees .After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence, for all these reasons, the Respondent prays to dismiss the claim with costs.

5053

भारत का राजपत्र : अगस्त 4, 2007/ श्रवण 13 , 1929

all the settlements made by the bank with the State Bank of India Staff Federation were under section 18 ( 1 ) of the Act and notunder section 18(3 ) ofthe Act . As per recruitment rules oftheRespondent/Bank, recruitment ofclass TV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Responden/Bank, Even in the Writ Petition before the High Court in W.P. No.7872 of 1991 , the Petitioner questioned the settlement flated 27-10-88 and 9-1.-91 . Tris false to allege that the settlements are contrary to the rights ofthe Petitioner . Hence , the Petitioner prays that an award maybe peased in his favour.

7. In these circumstances , the points for my consideration are.

(i ) "Whether the demand of the Petitioner inWait List No. 419 for restoring the wait list of temporary messengers in the ' Respondent Bank and consequential appointment thereupon as temporary messenger is justified?

( ii) "To what relief the Petitioner is entitled?" Point No. 1:

8. When the matter was taken up for enquiry , the Petitioner appeared and deposed his Chief Examination and when it was posted for cross examination of the Petitioner, he has not appeared for the same, even though the case was adjourned to so many bearings . It is reported by the representative for the Petitioner that he has no instruction from the Petitioner. Hence, the I Party /Petitioner was called absent and set exparte.

9. In this case , though the Petitioner alleged that he was appointedby Respondent/Bank during the year 1982 and be was terminatert during the year 1986-87 and again he was cogaged as temporary thessenger and all of a sudden, on31-3-97 he was tarnimated from service without any notice or notice of compensation . Since he has continuously worked for more than 240 days in a continuous period of 12 calendar months , he is entitled to the benefits of Section 25F of the LD. Act . But, no evidence was adduced on behalf of the Petitioner nor produced any document to establish his contention. The Petitioner has not appeared before this Tribunal to substantiate his claim As such, I find the allegations of the Petitioner was not established before this Tribonal .Hence, I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

10. Thus, the reference is disposed of accordingly.

)Dic ظمناضتعا e P.A, transcribed and typed by hirti , corrected and promounced by me in the open court on this day the 31st January. 2007. )

K.JAYARAMAN, Presiding Officer WitnessesExamined:

None

For the Petitioner

5. In the additional claim statement, the Tecitioner comended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/ Bank continuously with deliberate and artificial breaks . Therefore, the Respondcou/Bank is duty bound to regularise the services of the Petitioner as be has acquired the valuable right enshrined in theConstitution ofIndia. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances, wait listed persons like the Petitioner be engaged even in menial category, thus, the Respondent/Bank imposed total ban for his future cmployment. Even though there were sufficient number of vacancies in class IV category, the Respondentu/Bank deliberately delayed in filling up the vacancies by the wait listed women with uherior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitiones prays that an award may be passed in his favour .

For theRespondent

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated

MW1Sri C. Mariappan

MW2 Sri T. L. Selvaraj 5054

THE GAZETTE OF INDIA : AUGUST , 2007 / STRAVANA 13.109

Покатents Marked:

Ex. No. Dare

Description

01-0888 Хетох copy of the paper puhtuation in daily Thanthi hased on Ex ML .

20-04-88 Xerox copy of the administrative guidelines Issued by Respondent/Bank for inyplensentation ofEx. MI W3 24-04 Xerox copy of the circular Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies

W4 01-06-91 Хегол copy of the advertisenrent in The Hindu rin danly Wages based on Ex . Wa 20089

) Хегоx copy of the advertisement in The Hisklu extending Perind of qualifying service to daily wagers

15-03-97 Хетих сиpy of the circular letter of oral . Office. Chennai Aburt filling up of vacancies of messenger posts 25-0397 Xerox copy of the circular of Respondent/ Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-3-97

Nil Xerox copy of the instruction in Reference book on staff ahout casuals not to be engaged at office/branches to do messengerial work

[PART] SIC Sul W16 26-039 : Xerox copy the letter advising selection of paст :істе МеплашG. Pand..

W17 31-03-07 Xerexcept the spixanimeri orderto SiCi Pauh

Dec 2005

W16

Xerox copy of the pay slip of T. Sekzi Fur hemor.th of February. 2015 wuit list No. 395 ofMadura: Circle

W:9 1300-95 Xerox copy of the Madurai Module Circular leter shou : Engaging termpогагу employees from the panci of weit list W30 (09-11-92 Xe cupy of the Head Office circular No. 28 regarding Norms for sarction of inesser.ger stat

W21 09-07-92 Xanx copy of the minutes of the Bipartite W22 09-07-12 Xerox any of the settlemeal between Respondent Bark and All India Staff Bank of halia Staft Federation for implementation of norms creation of part time general altendants

W25 07-02-06 Xerox copy of the Incal leve Office circular ikout Conversion of parn ime empinyees aad redesignate them as general attendants

24 31-2285 Xerox copy of the incal Head Office corcular ahou Appuintmeal of temporary emalnyses in suherdinate cad: c.

For theRespondent/ Management :-

Fix Nu . Date

06-08-82 Хелиx copy of the service perrificiute issued by Tirumayam branch w: 17-11-87 Xerox copy of the sellement .

1607-88 Хетоx copy of the senlement .

W3

27-10-18

Xerox copy of the administrative guidelines in reference hook un stalt dmatters issued by Respondent/Bank regarding recruitment to subordinate care & service conditions

WIN

Xerox copy of the Chapter XXX ul Reference book on Staff matters regarding service conditions of part- time Employees & domestic servants W12 06-03-9 Xerox copy of the call lener from Madurai zonal office For interview of messenger post-V . Muralikannan W13 06-03-97 Xerox copy of the calt letter trom Madurai zonal office l'ur interview of messenger post- 6. Suhkuraj

W14 06-03-97 Xerox copy of me call letter from Madurai zanal office For interview of messenger post- 1 . Velmurugan

₩15 17-03- 万

Xerox copy of the service particular.- 1.Velmwugun

Хетоx copy of the selllement .

W4 17402-91 Xerox copy afile settlement .

К-07-6 Хетоx comy afrite sellement .

W6 09-06-95 Xerox copy of the minutes of conciliaton proceecing

28-06-91 Хотя copy of the order in W.P. No 78739;

15-416-98 Хегом tops of the order in OP. No.2787 97 ofliga Court of Orissa

W'9 10 - й Хотах copy of the orderof Supreme Court SLPN 308299

Who N

Xeick cupy of the wait list of Trichy Minlule

WII 25 KL99 Xeron copy of the order passed in CMP No 16289 & 16290/99 in W.A. No. 1893-99 5055

भारत का राजपत्र अगस्त 4, 2007/ वावण 13 , 1929

[ भाग साण्ड (ii) ]

नई दिल्ली, 19 जुलाई, 2007

constitution of this CGIT-com-Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal bus Dumbered it as I.D.No. 10/ 2004.

2. The Schedule mentioned in that order is as follows:-

फा.आर. 2196 ,मौद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औधोगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 10/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुमा था ।

(सं. एल -12012/322/ 98 - ठाई आर ( गी-1 ) ] अजय कुमार , डेस्क अधिकारी

"Whether the demand of the workmao Stri P. Rajendran , wait list No. 284 for restoring the wait list of temporary messengers in the establishmeal of State Bank of India and consequential appointment thereupon as lemporary messenger is justified? If so , to what relief the said workamon is entitled?"

NewDelhi, the 19th July, 2007

3. The allegations of the Petitioper in the Claim Statement are briefly as follows:

5.0. 2196.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 10/2004) of the Central Government Industrial Tribunal - cum-Labour Court, Chennai as shown in the Amexure in the Industrial Dispute between the Management of State Bank of India and their workman, received by the Central Government on 19-7-2007.

[No. L- 12012/322/98- IR(B- 1))

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL, TRIBUNAL CUM -LABOUR COURT, CHENNAJ

Wednesday, the31st Jamry,2007

PRESENT: KJAYARAMAN, PresidingOfficer INDUSTRIAL DISPUTEN . 10/2004 (Principal Labour Court CGID No.11 /99]

(In the matter of the dispute for adjudication under clause ( d) of sub- section ( 1 ) and sub- section 2 ( A ) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management ofState Bank of India and their workmeni .

FETWORN

1Party/Petitioner

Sri P.Rajendran

AND

The Assistant General

Party/Management

Manager, Stace Bank of India, Z.O. Coimbatoге

APPEARANCE :

Sri V. S. Ekambara ,

For the Petitioner

Authorised Representative.

M/s. K-S. Sundar, Advocates

For the Management

AWARD

The Petitioner was sponsored by Employment Exchange for the post ofsub staff in Class TV cadre in State Bank ofIndia and he was given appointment as messenger after at interview and medical examination . He was appointed on temporary basis at B. Komarapalayam broch from 10-5-1982. The Petitioner was orally informed that his services were no more required. The non - employment of the Petitioner and others became subject matter before Sopreane Court in the form of Writ Petition filed by State BankEmployees' Union in Writ Petition No. 542/87which was taken up by the Supreme Court. The Respondent/ Bank , in addition to its counter , filed copy of settlement under Section IB( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A , B and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be beld throngs advertisemeals- The Petitioner also submitted his application in the prescribed format through Branch Manager of the B. Kumarapalnyam branch. He was called for an interview by a Committer appointedby Respondent Bank in this regard. But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 10-5-1982, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in B.Komarapalayam branch. another advertiservent by the Respondent/Bank was roade regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required arty more and be need not attend the office from 1-4-97. Hexz ,

the petitioner raised a dispute with regard to bis non- employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Governmcal to The Central Government , Ministry of Labour vide Order No.L- 12012/322/98 -TR( B-1) daund 1.2-1999 luas refermad this dispute earlier to the famil Nadu Principal Labour Court, Chennai and the said Labour Court bas taken the dispute on its file as CGID No.11/99 and issued notices inboth parties.Bath sides entered appearance and filed their claim statement and Counter Statement respectively. After the

3218 6407-31 5056

THE GAZETTE OF INDIA AUGUST , 20SRAVANA 3.19

PART li S. Min !

= reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service a obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent /Bank Look up su reasonable stand that the service and the 11mber of days worked by Petitioner were treated as of no consequence, since according to the RespondentBank. r engaged the Petitioner only in temporary services atter the settlement . The Petitioner was not aware of settlement ty which his services and number of days worked him after interview do not merit consideration. The Petoner was bola party to the settlemear mentioned by the Respondent/Bank before the conciliation offices .Therefore. the Respondent's action in oor absorbing him in regulan service is unjust and illegal . Further , the semicments are геридлам на Section 250 and 25H of the 1.0 . Act. The erminallon of the Petitioner is against the provisions of paru 522(4) of Sastry Award. Even though the selllement speaks about three categories only a single wait list has been prepared and the Responden/Bank has beer regularising according in theit whims and fancies . The Respondent/Bank has also nou observed the instructions regarding grant of increments, leave, medical benefits etc. to the temporary workmen which amounts to viclation of relevaan provisions of circutar . The Respondent/Baak engaged the Tetitioner and extracted the same work either by payment of petty cash or by directing him to work incer issalmed naine or by both which , amounts 10 unfair Cabour practice. The wait list suffers serious infirmities and it is not based on strict sensority and without алу татіска ! е . Hence. for all these reasons the Petitioner prays to gran : relielut'regular employment in Respondent Bank will all alendont henefits

Реістог цахandidate No. 284 in wai: list una . Oltice. Caimbaume solar 21 : waitlisted remix: rary adidares of 705 wait sred rempezary employees were permana pented by Responder Banik It is frise to liege thar the Petitioner worked as a temipuuгаг messenger . Her Feeter was engaged only in leave Vacancies is aheritaume. Wher the Petitione : having submitted tuseleccion procas in terms Di settlemen's drawn as poihment provisos refered to above . card and cair apponment . Suel efe tes:porary erepige we were appoimed were engage for more number of days and her.ce. they were appointed under the seulement empingceswere categorised as A. R C. Considererseroa serce and subject alergiity crites auler cregory 1A) the emporar explcyces who were engaged from 140 days were to he considered and under category (R ) the temporary empingers who have 200pieted 270 days aggre ten puzary service many conunueus block of 36 calendar anectins and under category IC) the temporary employees whohave competed 30 day aggregate temporary service on any czindur ya d'er 1-7-75 or unininem 70 days aggregate lemppигат всrvice any continuese block of is calendar months were the dered . As per cla length oftemporary service was to be considered. fus senining in the car and i was also agreed that wair st was to lapse in December . 1991 and the ut of : dare was extenda 71-3-7 fo: fing up vacancies which w 31יקבפה The Peer as ne valid and enizeable righe pictment . The Respondent.n Implemented the vriental , retirement scheme and sen the permanent acances and substantially even reduced Inere were regulaciable . The pecurka problem was dus : Jesthatal the afores tempora emphisees were working te vecancies and pr regular permes . Jo terms of aforesaid settamens uutel 705 wait.issed candidates . 211 Car employees were appoined and since the Petitioner was was isted arom apposted . The said serilen.erts were beza fine wuch were the only winkahle Subun and is biufnger the Peutinner a he Pectioner is estopped furn cuestioning te settlements directzy ur indirectly and his can stisch to be rejected. Farmber.the nd settlemen ! יה quest.ancal by any unior, ac far and the serem ethanhmal settlements and operated hroughout the country . The Tamil Nadu Industrial Establishmen Coulermarr of Permanent Status re Workmen ) Acr. 981 esa : aeply ro Respondent Bank amis buncaster se concitain such pleu . kis not correct in sat that Jocuments and identity of Pertrioner was verified before the Penonner was engaged . 1: is also not cerrect tests at the Petitiore was discharging the permutant nesserger As per settlements , vacancies upto 31.17 were filled up aامنية thewaited list of tеmрстагу employees and vacancies for 1995-96 has n be fied up acainst the wait list draws fo appointment ofdaily wagesca al lab . Jurther, for circle DE Chennai wat list of daily wages was not fucalized and Lence not published and there is only one war list for the 4. As against this, the Respondent in its Coenre Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable . ThePetitfoner was nos in continuous service . Hence , the question of regular appointment/ alisurption does nai arise. The engagement of Petitioner was noe aurhurised . The Petitioner is estopped from making claim as per Cları Statemer. The settlement drawn under provisions of Section 18 ( 1 ) and 18 ( 3 ) nf 1.1) . Act in lieu of provisions of law, retrenchment and implemented by Respondenr /Batik The claint of the Peririnner is not bona ride and made with ullernur mptive . The Petitioner concealed the material facts that he was wail listed as per has length of engagement and could not be absorbed us he was positioned dow seniority. Due to the business exigency, the Respende Bank engaged the temporary employee for performance of duties as messenger and such engagements wer prevailing from the year 1970 onwards . Such of those ediployees who are claiming permanent absorprind when the ir case was esporised by Starc Bank ul Lodia Sterf Federation which resulted in five settlemenrs dated 17-11-87,16-7-88, 7-10-88,91-91 and 30-796 . The said settlements became subject matter of conciliation proccedings and minutes were drawn under Section 183) of 1.D. Act. In terins thereof, the Petitioner was cursidered for permanent appointment as per his eligibility alongwidt similarly placed uther temporary employees and the 5057

भारत का राजदन अगस्तै 4, 2007 / श्रवण 13, 1929

[भाग:। त्यण्ड ( i ) ]

appointraent of temporary employees . After the exp wait list . the Petitioner has no claim for рестиныено absorption. Hence , for all these reasons. the Respondent prays to dismiss the claim with costs.

4. this case , the Peunoner alleged that he was appointed by Respondent Bank during 1982 and he walks terminated during the year 1986 87 and again worked as a temporary inessenger and all of a sudden, on 31-3-97 he was terminated form service without any notice or notice of compensation . Since he has continuously worked for more than 240 days in a contisurous period of 12 calendar months, he is entitled to the benefits of Section 250 of the I.D. Act . But , no evidence was adduced on behalf of tw Petitioner nor produced any document to establish Fis contention. The Petitioner has not appeared beforethis Tribunal to substuntiate his claro . As such , Ind llegations of the Petitioner were not established this Tribunal . Hence, I find the Petitioner is not eind any relief is claimed hy him . No Costs.

10. Thus , the reference is disposed of accordingly .

(Dictated to the PA, transcribed and typed by him. corrected and pronounced by one in the open court on this day the 1st Januaгу , 2007.)

K.JAYARAMAN. Presiding Officer

नई दिल्ली , 19 जुलाई , 2007

5.17. the additional claim statement , the Petitioner sontended that he was having been sponsored by comployment exchange and having undergone medical cxamination , the peritioner has fulfilled the criteria set out by the Respo vientBank for selection of candidate for pexpintuseur in the post of messenger and other class IV 10st . He was engaged in the messenger pust in the uburdinate cadre of the Respondent Bank naticuously with deliberare and artificial breaks . Therefore, the Respondent/ barık is duty bound to regularise the erses of the Petitioner as he has auxquired the valuable .iglst enshrined in the Constitution of India. In the year 996. The Respondent/Bank has issued a circular to the חט lect rhar under no circumstances , wair listed persons like The Petizioner de engaged even in menial category . thus. the Respondent tank imposed total ban for his future employment . Even though there were sufficient number of Facuccies in class IV category , the RespondenuBank Beliternely delayedin filling up the vacancies by the wait sex wurkmen with ulterior motive . The Respondena /Bank has been arbitrarily filting up the vacancics with the persons her Sharn wait listed workmen according to their whins and fancies .Hence , the Petitioner prays that an award may te passed in his favour .

का.आ. 2197, -औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 17 के अनुसारण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण, चेन्नई के पंच्सट ( संदर्भ संख्या 183/2004 ) को प्रकाशित करती है . जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[सं. एल. 12012/564/98 - अलई मार (बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 19th July,2007

S.O. 2197. In pursuance of Section 17 of the Industrial Disputes Act. 1947 ( 14 of 1947), the Central Government hereby publishes the award (Ref. No. 183/2004) of the Central Groverament Inclusstrial Tribunal -cum- Labour Court . Chennai as shown in the Annexure in the Industrial Dispute between the Management of State Bank of India and their workman , received by the Central Government 200019.7סט .

6. Again, tie: Tetitioner filed a rejoinder in the counter Statement of the Respondent , whercin it is stated all the senlements made by the bank with the State Bank of India Stafl L'ederations were under section 18 ( 1 of the Aut and under Section 18/3 ) of the Aul . As per recruitment rules of the Respondent / Rank, recruitment of class IV staff in the Respondenr /Bank is in accordance with the ustructions laid down under codified cireniars of the Respondent/Bank . Even in the Writ Petitionbefore the High Court in W.P.No. 7872 of 1991 , the Petitioner questioned the schlement dated 27-10-88 and 91-91 . It is Falve 10 allege that the settlements are contrary to the rights f : Petitioner . Hence , the Petitioner prays that an award May be passed in his favour.

[No. L- 12012/564/98- IR ( B- 1) ] AJAY KUMAR, Desk Officer 7.In these circumstances , the points for my consideration are :-

ANNEXURE

BEFORETHE CENTRAL GOVT. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, CHENNAI

Wednesday, the 31st January,2007 Ti ) "Whether the demand of the Petitioner in Wall List No. 284 for restoring the wait list of temporary messengers in the Respondem/Bank and consequential appointment thereupon as temporary messenger is justified?

(i) "To what relief the Petitioner is entitled?

Point No. 1 :

PRESENT:K. JAYARAMAN , Presiding Officer Lindustrial Despate No. 183/2004

[Principal 1 ahxur Court CGID No.282/99] 8. When the matter was taken up for hearing, it is reported by the representative of the Petitioner that ve is not appearing for the Petitioner and the Petitioner has n04 appeared before this Court for further proceedings and hence , The Petitioner was called absent and set exparte .

(In the matter of the dispute for adjudication under clause (d) of sub- sction ( I) and sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), between the Management of State Bank of India and their workma ) , 5058

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13. 1929 PART IT SLC . 30 ) ] BETWEEN

Sri P. Rajendran (deceased)

I Party/Petitionет

AND

The Assistant General

: Party/Management

Manager, State Bank of India, Region - 1, Trichy.

APPEARANCE :

Por the Petitioner

Sri V.S. Ekambaram , Authorised Representalive.

For the Madagement M/s . K. S. Sundar, Advocales

AWARD

A. B and C. Though the classification was unreasonable . theRespondent/Banik brought on the notice ofthe Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed formalthrough Branch Manager of the brancin. He was called for an interview by a Cumumitree appointed by Respondent/Bank in this regard. But , they have not informed the result of interview and also with regard to appointment But , the Peticinner was informed orally re join at the branch where he mittally worked as a class IV employee The Petitioner has been working as a temporary thessenger and some times performing work in other branches also Whule working on remporary basis , aruther advertisement by the Respundent/ Bank was made regarding casual workers who were reported to be in service during the same perod While the Petitioner was working as such , the Manager of the branch informed the Petiesoner orally on 31-3-97 thar his services are not required any ssore and he need an allend the vifice from 1-4-97 . Hence. the Petitioner raised a dispute with regard to his non- carployment . Since the conciliarion ended in failure , the roatter was referred to this Tribunal tur adjudicariกก .

The Central Government , Ministry of Labour vide Order No.112012/564/98 - IR( M - 1) dated 26-4-1999 has referred thią dispute earlier to the Tamil Nadu Principal abour Court Chennai and the said Labour Coum has caker , the dispute on its file as CGID No. 282/99 and issued notices to both parties . But the petitioner has not filed the Claim Statement before the Tamil Nadu Principal Labour Courn After the constitution of this CGIT- cum -Labour Court the salddispute has been transferred to this Tribunal for adjudication, and this Tribunal has numbered it as ID No. 183/2004 and notices were issued to both parties and both partica entered appearance and filed their Claim Stalleinent and Counter Statement respectively.

2. The Schedule mentioned in that order is as foliows:

Whether the demand of the workzman Shri P.S. Rajendran , wail list No. for restoring the wait listof temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If 30 , to what relief the said workman is entitled?"

3 The allegatiores of the Petitioner in the Claim Statement are briefly as follows :

The Positioner was sponsored by EmploymeneE Fxchange for the post of sub- staff in Class IV cadre in State Bank of India and he was given appointment as messenget ufter an interview and medical examination .He was appointed on temporary basis . The Petitioner was orally informed thar his services were no more required. The non-employment of the Petitioner and others becатье subject- matiar before Supreme Court in the form ofWrit Petitaon filed by State Bank Employees' Union in Writ Petition No. $42/87 which was taken upby the Supreme Court. The Respondent/Bank , in addition to its counter, tised a copy of settlement under Section 18( 1 ) reached berwuen management of State Bank of India andAll India State Bank of India Staff Federation and the settlerocar is with regard to absorption of Class IV temporary workmen whowere denied cxcmployment after 1985-86 were classified in the setlerent was under consideration once again and they classified the workroen under three categories narthely

4. As against this . the Respondent in its Counter Statement olleged that reference made by the Govt . kor adjudication by this Tribunal itself is ixil maintainabic The Petitioner was nei in vontinuous service Elence , he quesiton of regular appointment/ absorption does nui arse The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The setdement drawn under provisions of Sections 1841 ) атаб 18 ( 3 ) of I.D. Act in lieu of provisions of Law, retrenchitment and implemented by Respondent/Manik . The claim of the Peticioner is net bona fide and made with ulterior holive . The Petitinner concealed the material facts thathewas wait listed as per his length of engagement and could notbe absorbed as he was positioned down in sediority.Due to the business exigency , the Respondent Bank engaged the temporary employees for performanсе of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and when their case was espoused by State Hank of India Staff Federazing which resulted in five settlements darcá 17-11-87, 16-07-88-07-10-88, 9-1-91 and 30-7-96 The said settlements became subject - matter of conciliation proceedings and aninutes were drassen under section 18 (3 ) of I.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was 'wain listed as condidate No. 638 in wailist uf Zonal Office . Trichy. So far 212 wait listed temporary candidates , out of 652 wutlisted temporary employees were permanently appointed by Respondent/Bank. It is falsetu allege that the Petirioner worked as a sensporary messenger . The Petitioner was engaged onty in leave vacancies us and when it arose. When the Petitioner having submittedto 5059

भारत का राजपत्र अगस्त 4, 2007/ ऋण 13, 1929

[ भाग-खण्ड 3 ( ii) ]

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the rmessenger post in the subordinate cadre of the Respondent/ Bank cuorinuously with deliberate and artificial breaks . Therefore, the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of lodia. In the year 1998, the Respondent/Bank bas issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in mecial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient bumber of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persona other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is suated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment . rules of the Respondent Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No 7872 of 1991, the Petitioner questioned the sectiement dated 27-10-88 and 9-1-91. It is false 10 allege that the settlements are contrary to the rights of the Petitioner . Ilence , the Petitioner prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration are :

(0) "Whether the demand of the Petitioner in Wait List No. for restoring the wait list of temporary messengers in the Respondent Bank and consequential appointment thereupon as temporary messenger is justifier)?"

(i) "To what relief the Petitioner is entitled?"

Point Nos. 11:

8. When the matter was pending before this Tribunal at the time of evidence, it is reported that the Petitioner died and it is posted for taking steps. But , the LRs of the Petitioner have not taken any steps to implead them as LRs in this dispute from 6-12-2004. They have also not filed any memo staling when the Petitioner died or what steps they have taken to implead them in this dispute .

selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot burn around and claim appointment. Such of those termporaгу employees who were appointed were engaged for more number of days and hence, they were appointed. Under the sectiomcat, employees were categorised as A, B atsd C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temроrагу employees who were engaged for 240 days were to he considered and under category (B ) the temporary employees who have completed 270 days aggregate tcorporary service in any continuous block of 36 calendar months and under category (C ) the temporary employees who have completed 30 days aggregate remporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered : As per Clause 7. the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off dare was extended upto 31-3-97 for filling up vacancies whichwere to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retireracnt scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regulat permanent vacancies. In terms of aforesaid sctdemears, out of 652 wait listed candilates , 2.12 temporary etaployees were appointed and since the Petitioner was wait listedat638 he was not appointed. The sand settlements were bonafide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped frutti questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the sealements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Wertmen) Act, 1981 does not apply to Respondent/Bank und this Tribunal has no jurisdiction to entertain suchplea. It is not correct to say that documents and identity of Petitionerwas verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up agains the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual Labour. Fumber, for circle of Chennai wait list of daily wages was not finalized and bence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with posts.

5060

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANA 13. 1909

PART LE- SEC . Sijil

BETWEEN

Arputhasamy (deceased) : 1 Party/Petitioner

ANI

The Assistant General

II Party /Managemen

Maouper.

Stare Bank of India .

Region 1. Trichy .

AITEARANCE:

For thePetitinaer

9. The reference made in this dispute is "Whether the dentarst of the workman for restoring the wait list of temporary thessengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified and for consequential appointed threon as temporary messenger . It is only a personal right claimed by the Petitioner and since it cannot be said that the LRs of the Peritioner have no personal right to claim employment in the Respondent/ Management, I find even in the event of reference being answered in favour of the deceased Petitioner , this petition cannutbe allowed. Therefore , I find the claim is abated and thus , it is dismissedbut without any costs .

10. Thus the reference is disposed of accordingly . For the Management

SV.S. Ikumbarani . Authorised Representative. Mis M.S. SundarAtiandan, Advncates

AWARID

Dicwlad m th : PA... crausribed and typed by him conected מייןב d by me in the up court this day the 31s1 Балагу, 2007).

K. JAYARAMAN , Presiding Officer नई दिल्ली. 19 जुलाई , 2017

का.आ. 2198 औद्योगिक विवाद अधिनियम, 1947 (1947 का ।4) की धारा 1 ? के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उसके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण, चेन्मई के पंचाट ( संदर्भ संख्या 121/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[ एल-12012/249 /98- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

The Central Convermen . Ministry of Labour ride Order No.L- 12012 /249 / 98 Mi3-1 ) dated 08 02-1909 ha referred this dispute carles to the Tamil Nadu Principa Iabour Court , Chennai and the sail labour Courts laixen the daspute on its ale as CC11D No. 111/99 and issue notices to boil partes. Hul. the Peticinuer has not file the Claim Statement before the Tamil Nadu Principal Halsr Coun . After the east of his CGIT-Cum- [ alsur Court . the said dispune has been transte fed to his Tribunal for adjudicatoua and has numbered in ες 1.1 No. 121/2004 and notices were issued to both pierres and both parties entered appearance and lied their Cam Starernent and Counter Statement respectively New Delfu . the 19th July,2007

2. The Schedule mertioned in that ercer is as follows:-

5.0. 2198- In pursuance of Section 17 of the Industrial Disputes Act . 1947 ( 14 of 1947 ) . the Central Covermument creby publishes the Award (Ref . No. 121/2014) of the Central Gove Industrial Tribunal cum- Tabora. Chennai as shown in the Annexure in the Industrial Dispute between the Management of State Bank of Indau and their workman , received by the Central Government 19-07-2001רוח

"Whether the demand of the workman Shri S. Arputhasamy, wait last Na. fi? for restoring, the: wait list of temporary messengers in the establishment ci Status: Hank of India and consequenrial app.vnrmer thereupon as temporary messenger is justified ! If so , to what relief ine said workmantled ?"

[ 1.1-12012/249/ 98- IR (B-T) )

AJAY KUMAR, Desk Officer

ANNEXLURE

BEFORE THE CENTRAL GOVT. INDUSTRIAL . TRIBUNAL-CUM -LABUR COURT, CHENNAL Wednesday, the 31st January ,2007

3. When the matter was taken up for learing, it is reported by the representative of the Petitioner that the Telitouner died 20-11 - amt hied a petirion tu amplead legal heirs of the deceaser Shave giver a finding, in the LR parition vise 1.4 . Onder No 211/2005 dated 2nd November , 2005 tht LRs application is not maintainable and sincere orders were ubtained from higher korum, 1 find the clarm is abaixarul the Petition is plastmissed without any cunts

PRESENT: K JAYARAMAN, Presiding Officer INDUSTRIAL DISPUTE No. 121/2004

4. Thus the reference is A sposed of accordingly .

(Principal Tabour Cour C: GID No. 11/99

sped by hiru erected and pronounced the pen this day the s Jan. 2007).

In the matter of the dispute for adjudication under clause lul sub - seion ( 1 ) and sub - section (A) of Section LU DI the Industrial Disputes Act, 1947 ( 14 of 1947 ) , between the Management of State Bank of India and their workanen) .

K. JAYARAMAN , Presiding Officer 50NG1

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

भाग -खण्क ( ⅲ) |

नई दिल्ली, 19 जुलाई , 2007

to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively . After the constitution of this CGIT cum labour Court the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as 1. D. No.235/2004.

2. The Schedule mentioned in that order is as follows:

का.आ. 2199.-औद्योगिक विषाद अधिनियम , 1947 (1947 जा ( 4 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक अॅफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में कन्द्रीय सरकार , औद्योगिक अधिकरणः श्रम न्यायालय , क्षेत्रई के पंचाट ( संदर्भ संख्या 235/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 9-7-2007 को प्राप्त हुआ था ।

| सं. एल 12012/465/98 - आईआर ( बी-1) ] अवय कुमार, डेस्क अधिकारी

New Delhi , the 19th July,2007

"Whether the demand of the workman Shri K. Ramachandran , wait list No. 603 for restoring thewait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workroom is entitlce? "

3. The allegations of the Petitioner in the. Claim Statement arebriefly as follows:--

5.0. 2199. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 11 of 1947 ) , the Central CGovernment hereby publishes the Award ( Rei. No 235/ 2004 of the Central Government , Industriai Tribunal Labour Court , Chennar as shown in the Annexure in the Industrial Dispute between the management of StateBank of India and their workmen , received by the Central Governmeru on 19-7-2007.

[No. L- 12012/465/98- IR (B- 1)

AJAY KUMAR, Desk Officer

ANNEXURE

REFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT, CHENNAI

Wednesday, the 31st January , 2007

PRESENT:

Shri K. JAYARAMAN, Presiding Officer

Industrial Dispute No. 235/2004

(Principal Labour Court CGIDNo. 162/99)

In the matter of the dispute for adjudication under clause (d) of sub- section ( 1 ) and sub section 2 (A ) of Section 10 of ine Industrial Disputes Act, 1947 ( 14 of 19-17) . betweenthe Management of State Bank of India and their workme )

BETWEEN

Si . K. Ramachandran

: 1 Pany/Petitioner

AND

The Assistant General Manager .: П Party Мапаретая State Bank of India. 70. Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekraan .

Authorised Representative

: M's. K.5 . Sundar,

For the Management

Advocates

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in Stale Bank of India and be was given appointinent as messenger after an interview und medical examination . He was appointed on temporary hasis at Janapanchacirao brankb fjrwm 24-10-83 . The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Li'nion in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Responden Bank , in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management ofState Rank of India and All India State Bank of India Stafl Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to he held through advertisements . The Petitauper also submitted his application in the prescribed format through Branch Manager of the Janapunchatiram branch. He was called for an interview by a Comansinee appointed by Respondent/Bank in this regard. Bul , they have not informed the result of interview and alsowith regard to appointment. But , the Peticioner was informed orally to join at the branch where he initially wurkert as a class IV employee. From 24-10-83, the Petitioner has beenworking as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Janapanchatiram branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner urally on 31-3-1997 that his services are not required any more and the need not attend the office from 1-4-1997. Hence , the Petitioner raised a dispute with regard 1 The Central Government Ministry ofLabour, vide Order No. L- 12012/465 /98 - IR (B-1) dated 12-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said 1.abourCourt has raken the dispute on its file as CGID No. 163/99 and issued atίσες 5062

THE GAZETTE OF INDIA : ALGUST 4, 2007 / SRAVANA 13.1929

[PART 11-SEC. 3( 1) ] to his not employment . Since the conciliation ended an failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , The reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation το Covemmeat to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage hitm in service as obtained prior to 31-3-1997 and to regularisa him in service in due course . The Respondent Bank took up an unreasonable stand that the service anx ! the number ofdays worked by Petitioner were treated as uf по сопsequence , since according to the Respondem/Bank. it engaged the Petitioner only intemporary services after the yelltentent. The Petitioner was not aware of settlement bywhich his services and number of days worked by him after interview de not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondes/Bank before the conciliation officer. Therefore . the Respondent's action in not absorbing him in regular service is unjust and illegal . Further . the settlements are repugnant to Section 25G & 25H of the LD . Act The lecminotion of the Petitioner is against the provisions of para 522(4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has heen prepared and the Respondent Bank has been regularising according to their whirms and fancies . The Responder: /Bank has also not observed the instructions regarding gram of increments , leave , medical benefits etc. to the recmporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assurded dame or by both which amounts to unfair labour practice.The waitlist suffers serious infirmities and it is nut based on strict seniority and without any rationale .Hence, for all these reasons the Petitioner prays to grant relief of regular entployment in Respondent/Bank with all uttendant benefirs .

when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987,16-7-1988.7-10-1988 , 9-1-1991 and30-7-1996. The said seulements became subject matter of conciliation proceedings and nioutes were drawn under Section 18 (3 ) of I.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Peritioner was wart listed as candidate No. 603 in wait list ofZonal Office , Chennai . So far 357 wait listed tempuгагу candidates, out of 744 waitlisted temporary employees were permanently appointed by Responden /Bank. U is false to allege that the Petitioner worked as a meniporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submined to selection process in terms of settlements drawn as per retrenchment provisions referred in above , cannot Lusti around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement , employees were categorised as A, B and C. Considering their termporary service and subject. 10 other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category( 15 ) the temporary employees who have completed 270 duys uggregate temporary service in any continuous block of 36 calendar months and under category ( C ) the temporary employees who have completed 30 days aggregare temporary sегине in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause7, the length of temporary service wus to be considered for seniority in the waitlist and it was also agreed that wait list was to lapse in December . 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were ro arise upto 31-12-1994. The Peritioner bas ou valikl anal enforceable right for appointment , The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due no the facts that ult the aforesaid temporary employees were working inleave vacancies and not in regular permanent vacancies . In terms of aforesaid seulements , out of 744 wait listed candidates , 357 temporary employees were appninred and since the Petitioner was wait listed ar 60.3 he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Perisioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable in be rejected . Hurther , the said sertlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishmenm Conferment of Permanen Status to Workmen ) Act, 1981 does not apply to Respondent/ Bank and this Tribunal has nu jurisdiction to entertain sucht plea . It is not correct in 4. As against this , the Respondent in its Counter Statemendalleged that reference made by the Government for adjudicationby this Tribunal itself is not maintainable. ThePetitioner was not in continnous service. Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18 ( 1 ) and 18 ( 3 ) of LD. Act in lieu of provisions of law, retrenchment and implemented by Respondent Bank . The claim of the Petitioner is not borta fude and made with ulterior motive . The Peritioner concealed the material facts thathe was waitlisted as per his length of engagement and could not he absorbed as he was posirioned dow מןמ seniority Due to the business exigency, the Respondent Bank engaged the temporary employees for performance uf duties as messenger and such engagements were prevailing from the year 1970 onwards . Stich ul those employees who are claiming permanent abeurption and say thatdocuments and identity of Petitioner was verified 5063

भारत की राजपत्र अगस्त 4, 2007/ श्रवण 13, 1929

[ भाग -खण्ड 3 (ii ) ]

thereupon as temporary messenger is justified?"

(1) "To what relief the Petitioner is entitled?"

Point No.L:

before the Petitioner was engaged. It is also hot correctto say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upen 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casaul Labour . Further, for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporгагу entployees. After the expiry of wait list . the Petitioner has no claim for permanent absorption. Hence, for all these reasons, the Respondent prays to dismiss the claim with CORLS .

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms of the relevant guidelines / circulars ofthe Respondent /Bank in permament vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years . the Petitioner in this case and other Petitioners in the comected disputes were terminated without any notice. Since theRespondent /Bank terminated several temporary employees in . the year 1985, the State Bank Employees Union had filed a Writ Petitionbefore the Supreme Court 10 protect the legal and constitutional rights of the worlamen concerned and while the matter was pending in Writ Petition No. 542 (Civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of froal hearing of the Writ Petition . This settlement has become an exhibit of the Respondent /Bank and has been marked as Ex . M1 , The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchroent as unjust and illegal and they further prayed for reinstatement with back wages and other attendant henefits .

5. In the additional claim statement, the Petitsoper contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteris set out by the Respondent Bank for selection of candidate for appointment in the post of messenger and other class TV pust . He was engaged in the messenger post in the subordinate cadre of the Respondent/Brak continuously with deliberate and artificial breaks. Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances, wait listed persons like the Petitionerbe engaged even in menial category, thus, the Respondcut/ Bank imposed total bad for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persone other than wait listed workmen according to their whims and fancies .Hence, the Petitioner prays that an award may be passed in his favour .

6.Again, the Petitioncs filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per restritmear Tules oftheRespondent /Bank , recruitment of class FV staff in the Responden Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . Ja is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration are :

9. On behalf of the Petitioner , it is contended that thesc Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the semporary employees and any settlement in this regard is redundant and in army case, thePetitioner is not bound by settlemeat under section 18(1) entered into between the alleged Federation and the Respondent Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and coforceable right for appointment, in the wake of strict instructions and circulars/ guidelines issued by the Respontent/Bank to the effect that temporary eroployees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V - A of the[.D. Act and it is preposterous to contend that the (3) "Whether the demand of the Petitioner in Wait List No. 603 for restoring the wait list of temporary messengers in the Respondent Bank and consequential appointment

321B GIOT-32 5064

THE GAZETTE OF INDIA : AUGUST . JUTRAVANA 12.1999

[PART T: SC Petitioner has no valid and enforceable righe for appoinment as Section 250 and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligibleto be reinstated . Learned representative fur the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL. BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V -A of the LD. Act providing for retrenchment is nor enacted only forthe benefit of the workmen to whom Section 25F applies but for all causes of retrenchinem. Therefore, the application ofSection 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Responddo Bank that the Petitioner has no valid arıd enforceable right for appointment is unconable , 1; is further contended that on behalf of the Petitioner that Lix . 2. W'3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions ofthe Respondent/Bank issued from time to time in connection with the implementation of the seulements on absorption and which are statutory in character. Further , a combined study of Ex.Ml and the. averment ofMWI and MW2 and their testimonies during the cross- xamination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of lix. M: deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization ut"A. B&C' is quite opposed to the doctrine of' last come firs go or firstcone- last go ' and therefore , the categorization in Clause is illegal . Clause 1 ( a) of Ex.MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / cusual vacancies of messengers . farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book un Staff matters . copyof which is roarked as Lix .W8. Further , the appointmen ofdailywage basis for regular messengerial jobs etc are strictly prohibited as per bank's circulars/ instructions . In such circulbstances , the absorption of casuats along with the eligible categories is not valid. Therefore, these persuns who were engaged by the Respondent/ Bank on basis should not be given permanent appointment in the bank service. Those casuals were given more beneficia treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Fx.W2 tour rypes of wairing lists have cre prepared. But the Respondent Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case, Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers. EvenMW Bis unable to say as to when the wait tis ! Ex.MJO was prepared , but it is mentioned in Ex.M10 chal I was prepared bated on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are sharked as Ex.MI , M3 and M4 respectively. But , when MWI has spoken about the

1987 setement and Iwo distinct and separate ene class and their ac viclarion of Article of settl.ments,hedeprised that settlement dated 27.10- He was por included in the Madras circle since the High Court order is there, but he has act produced any document in. support the so called or- inclusion except his bald statcmedi . Purther , according to MWI wait list under bv.10 was prepared on 2-5-92hat there is no pleadingin The Counter Statement with read this waist . Further Uz Hon'blr igh Court has bell in its order duted 23-799 in WP Nc.7872which is an exhibet.n which its stated that is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale Ages asper B : panice Sellemem while the 1988 senlemer : dealt witheatly wager in Class IV category who were paid wages 19. martual agreement basis In such circumstances.ght cratended Die Respondent are al justitied and bendest of candidates covered sentent sme they formed riasses and they came undoubtedly am า เกา ร ID Constitution of India Further. statements in Courter Statemen ; are cuminte de areve and it is nothing but a desperate arrempt to : ggle nur die Ellegality commiscted or perpetrated by the Respondenrtark by cambing equals with unequal surther entended on behalf of the Petitioner that as per deposition of MWL wat list under Ех.М10 спора.seul both messengermal and non- messengeri : candidates While the temporary employzes were inned after due precess of selection and were paid wages on the landery wise sett.ement . Is nut 50 in he case nicarak Therefore , both beinnes ic two different and goes. But , Ex. M3 рrоvеs for the same const the cabluls as in the case of temporary employees me halter or absorpton . Therefore , it is viscofarrice 14 & 360 Constitution uf India . Theretore , the Tentener coatended that preparation of LxM1 nariciy wait ! t is not inconformity with the instructions of Ex M2 al Jon - preparation of separate parels amatier.of circular .Secundly. it has not been prepared as per instructines in Ex W2 Circulur regarding projected vacancies for the period frem 1987 to 1994. Furthermore , to wait list was released i published even after the Coal order in WMP No. i 1932/91 in W.P. No.7872/9 : directing the RespondentBank to release the list of surgesszal candidates pursuant הןיין fust advertisement puished in. The Hindu Cazed & 88. Fusthermore , walt lisander Ex . MIO does not carny particulars aboutthe candies date of inisial appointment and the number of days put in by them to arrive at their respective sensoris broma these things , it is clear that Tix. MIG has been prepared alation of instructions arid ceased to have trebaty attached in the want ist . Above ad. Lx M was produced at the time ef conciliation procreling held during the year 1997-99 hei Cheonai and Malarai and caly during the 13the RespondentBank procused the war list Ex M10 Before this Tribunai marking it as a colectial decumek . It is fiercher contended or hahafof the Petitioner that though 5065

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13, 1929

[भाः खण्ड (ii) ]

deposition of management Loesses during the cross casmination had become apparent that they have no personal knowledge about the settlemeats whichare marked Bs Ex .MI to M5 . Above all, though the RespopaeudBank has referred to voluntary retirement scheme. In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofResponden /Bank has no application to the Petitioner's . case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar norths as enshrined under Section 25B and 25F of the Industrial Disputes Act, therefore, their retrenchneist froth service i illegal ard against the mandatory provisions of Section and therefore, they are deemed to be in continuous service of the Respondent/ Bank and they are entitled to the benefits under the provisions of 1.D. Act. It is further contended on behalfofthe Petitioner that though some of the Petitioners in the connected LDs have not completed 240 days, since theRespondent/Bantik has not taken into consideration and not included the Sundays and paid holidays às days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months. He also relied on the rulings reported in 1982 Π LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that the expression ' actually worked under the employer ' cannot mean that those days only when the wordkanca worked with hammer , sickle or pan but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. It is further, argued that call lettres produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchumcat is illegal . In all these cases , the Petitioners were in employment as sub- staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continnous period of 12 calendar mouths and they are in age group of 40 to 50 years and for no falt of theirs , they find themselves stranded in life midstream They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

10. But , as against this, the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not muristainable in view of the facts and circumstances of the case. The Petitioner in this case and the Petitioners in the commected disputes were not in continuous service. Hence , the question of regular appointment/ absorption does not risetat all and the RespondentBank has alleged that these peti were engaged in leave vacancy, they have not been told thetime of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( oo ) of the 1.TD. Act, 1947. Though the Petitioner's work in the Respondent Bank is continueus and though the Petitioner performed the duties continuously which is still in existence, the categorisution as such is not valid and the provisions of Sasiry Award are aiso violated . J'urther , the representative of the Petitioner retied on the rulings reported in 1985 4 SCC 201 H.D. SINGH VS. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "in employ workmen as " ballies ' casuals or comporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Fix . M10 wait list has not beел prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Lix M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank hus not acted in accordance with the law and the spirit of the settlement, but in utter violation and ial breach of inThough clause 2 ( e ) of Ex . M4 states thar candidates fouod suitable for permanent appojatanent will be offered appointment against existing / future vacancy anywhere in randule or circle and in case , a candidate faills to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective papel and he shall have no further claim for being considered for perroanent appointment in the bank. The Respondent/ Bank has not produced any document show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support ofthe avernent and also for be averment of MWI . Therefore, the termination of the Petitioner who was in regular service of the Respondent Banik is arbitrary, mala fide and illegal and the Respondent Bank bas pot acted in accordance with the terms of sexlement ran absorption of semporary employees . Though theRespondent/Rank has produced Ex . M6which alleged to be a copy of minutes of conciliation proceedings dated 96-75 before Regional Labour Commissioner ( Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 ( 3 ) settlement as claimed by the Respondent/Bank which say's only with regard to modification of Ex . MI toM4 made in terms ofEx. M6, Though the Respondeat/Bank produced Ex M7 and MEI interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No.7872/91 ceased to save any relevance when the main wrir has been disposed ol in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner . Further, though the Respondent/Management bas examined two witnesses, the

ㅏ 5066

THE GAZETTE OF INDIA:AUGUST 4, 2007/SRAVANA 13, 1929

PART II-SEC . 3 ( i );

Court has held that settlements are divideć intu two categories namely ( i ) those arrived an outside the conciliation proceedings under Section 18 % of the I.D. Act and ( n) those arrived at in die course of sunimation proceedings under Section 18:31. A settlement of the first category has Jimited application and bints merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding Gall workinen of the cuablishment . Even in case of the first category , if the settlement was reached with a representative union of which the contesting workeness were members and if there was nothing unreasonable or untsir in the terms of the settlenenl , it must be binding on the Cuntesting workmen alsc ." He further relied on the ruings reported in.AJR 2000SC-169 NATIONAL ENGINEERING INDUSTRIES LID. VS STATE OF RAJASTHAN ANI OTHERS wherein the Supreme Court has held that "settlement is arrived at by the rec wall of the peres und is a pointer to there acing good will hetween them. When thea is a dispute thar the seitergent is not holatide it: nature or that it has been arrived on account of fraud . misrepresentation or concealsment of facts or EVC:: ormuption and other inducements . I exuld be subject matter of other industrial dispose which an appropriate may refer for adjudicatins after examining the allegations as there is an underlying itesumption taat the auttlernent reached with the help of the conciliarina elticer must he fair and reasonable "Rely.ngora.i nev: lessicay, lear counsel forthe Respondent contended the though i : s alleged that they are not parties settlement, since the foderation in which the Petitioner is as a nong them. they have entered arse settlement with alte bank ind thereture. it is binding on the Peelioner. Further, ine arge that no unica of the bank has gustined the sectiement aal in such circumstances , it cannot be and thai it heridan na chem and he is estopped from dispurins; the

11. Learned counsel for the Ke pomeni Jurther contended that though the reference enade in dus ware an other connected dispates is wherbes ite demand of the workman with wair list Nic . given for restoring the wait List of lemporary messengers in the establishmeRE IL Respondent/ Hank and consequenrial appointmen thereupon as temporary messenger is justified? The Petitioner contended that the verreachment made by the Respondent/Bank is not valid and he inas to be reinstated in service with full hawa wages en: Hence, the Petitioner's contention against the reference made by the Govt . is not valid. Fitrther , in this case , the Court bas to see whether the resturation of wart list can be made a contended by che T'entioner and not reinstatement as alleged by the Petitioner in the Claim Starome:1 .

their engagement was not authorised. Further, the Petitioners lare estopped from making claim as they had accepted the settlements drawn under the provisions of Section 181 ) and 18(3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive . Further , they have concealed the materis facts that the Petitioner was wait listedas per Dength of his engagement and could not be absorbed as he was positioned down in the sensority. The Responden Baok was engaging temporary employees due to busin كذ cxigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employmet Exchange is incorrect and the allegation that be worked as temporary messenger is also incarret , hey were engaged against leave vacancies . The settle entered mtos by the Respondent/Bank and the federation were burafice which were the only workable solution and is binding on the Peritioner . The Petitioner scuepted the sellement and accordingly he was wait listed and therefore, the Petitiong is.estopped frum questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlemenis and operate throughout the country. Further , he relied on the salings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD. VS. INDUSTRIAL TRIBUNAL A.P. AND HERS wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of || workmen and the workmen resigned from the job and received terminal benefits, but the workinen reised a plea before the Tribunal that they did not resign voluntanly But the Andhra Pradesh High Court has held that " in the absence of plea that the sellement reached in the course of conciliation is vitiated by fraud . misrepresentations of coercion , the seatlement is binding on the weihen. " Learned counsel for the Respondent further reliedon the rutangs reported in 1997 LL ! 1180 ASHOK AND OTHERS VR. MAHARASHTRA STATE TRANSPORTCORPORATION ANDOTHERS wherein the DivisionBeople of the Bombay High Court has held that "therefuze a karlement arrived at in the course of the conciliation proceedings with a recognised majority union wil: be bandise on all workmen of the establishmcm.even those who belong to the minorilly union which had objected Wthe same. To that extent, it departs from the ordinary law of chutracts , the object obviously is to uphold the sanctity of senlements reached with the active assistance of the concitiation officer and to discourage an individual exmployee or a minority union from scuttling the settlement." It further heid that there may be exceptional cases , where there maybe allegations of mala fides , fraud or even corruption or other inducemeals . Bur, in the absence of such allegations . a settlemem in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.C.P. LTD. Vis PRESIDING OFFICER AND OTHERS whereinthe Supreme

12. But, as against this on behalf of the Peririgger its contended that mere wording reverence is nu , decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 TAB IC 245 SECRETARY.

5067

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13, 1929

[भाग -खण्ड 3( ii) ]

is not questioned by any of the unions of the Respondent Bank, I find the Petitioner is not entitled to question the settlement .

KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM whocan the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the poitus on merits and not to find out some vechnical defects in the wording of reference , subjecting the poor workman to bardship involved in moving the machinery again. " It further beld that "the Tribunal should look into the pleading and find out the exact nacure of pleading of the Petitioner to find out the exacs nature of dispute instead of refusing to answer the reference on merits ." Further , he argued that theTribunal has got power to go into the question whether the Petitioner is to be reinstased in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENTPAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS. wherein the Madhya Pradesh High Count has held that "the Tribunal cannot go behind the terns of reference. but that does not mean that it cannot look into the pleadings of parties." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING CHHICER, LABOUR COURT, MADRAS . wherein ithas teen beld that it has been repeatedly held that the Labour Cou should not attempt to consider the order under reference in a technical manner or a pedantic manner , bur should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC. 569 the Supreme Court has held that " the Tribunal has jurisdiction consider all incidencal matters also ak! the order of Teleren should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of dasputes benween the parties and with that object in view. it should consider the order of relerence in a fair and reasonable mininer , rlmugh the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court ." Relying on all these decisions , the representative for the Petitioner argued that though in the reference . it is a mentioned that whether the retrenchment is valid UT tot . from the pleadings it is clear that the Peutioners have been retrenched from the Respondent/ Bank and therefore, tinis Tribunal can look into the pbeadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entided to the back wages as alleged by him . Therefore, the argument advanced on the side of the Respondent that is beyond the scope of reference is without any substance.

14. Then the learned counsel for the Respondent contended that since the Petitioner inentioned that he has been kept in the wait list ard the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VJJRESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy . " In that case , pruning of Select list on reduction in wumber of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom persons were memoved from the selecer list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He farther relied on the rulings reportert in 1997 6 SCC 584 SYNDICATE BANK & ORS VS. SHANKAR PALI . AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel wus valid for one year onty and that inclusion of their names in the panel was not in confer on them any right to seek permanent appointment in the services of the bank . Considering the ahject with which the pad was prepared and the fact that it was a yearly pesel expiring on 6-2-98 , we are ofthe opinion that the Respondents did not get any right because of inclusion of their nanses in the said panel for permanenat absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore, the learned Single Judge and the Division Berich , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SOC 47 SHANKARSAN DASH Vs. LINION OF INDIA wherein the Supreme Court bas beld that " candidates, included in ment list has no indefcasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question thewait list and since there is no mala fide on the part of theRespondent/Bank in preparing the wait list, it camm besaid that preparation of wait list was made with mala- fidemotive.Under such circumstances , after the expiry of thedate namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, be relied on the

rulings reported in 1992 LAB IC 2168 STATE OF 13. 1 find some force in the contention of the representative for the Petitiosser . Therefore , I find dais Tribursul as entitled to go into the question whether the relief prayed for hy the Petitioner can be given to him or THUL?But , I find that the settlement was validly entered into between theRespondent /Bank and Federation and since it 5068

THE GAZETTE OF INDIA :AUGUST 4, 21017/ SRAVANA .3. 1929

[PART II- Scan)

nullity . " Therefore , learned counsel for the Responceal contended that these temporary employees were appointed only due to exigencies and they have nor appointed agains ! any regular vacancy and they have only appointed in leave vacancies and there fure . they are not encirled to claim any absorption ir. the Responden /Barik. Further , he relied on Bie zutings repered in AIR 1997 SCC 3657 HIMANSHI . KUMAR VIDYARTHI & ORS F STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they arc temporary employees working va dady wages . Under these circumstances . her disengagement from service cannot be custrued to be а гепепсельетH under the I.D. Act. The conceрикеткитиent therefore , cannot be stretcined to such an extent as to never these employees . Since they are only daty wage employees and have no ngh: to the posts, " her disengagement is not arbilticy." fle further relied on the rulings reported in 1994 3 LL! ( Supp ) 754 wheren Lie Rajasthan High Court his held that "Under Section 25G of the 1 D. Ast retrenchiment prosedure following principle of inst corr.e - first go ' is not mandalı but only directory na sufficient grounds showr.. th.c empinyer is permitee ke depart from the said principir retretiching seniors and retaising : הטiors . Thongls in this case. the Petiaoner Las alleged that his juniors have heer made permanent in banking service , he has not established with any evidence that his junious were made perтапевт by the Responder.L'Bank Any how . if the Petitioner has shown anything . the Responden Bank isready to establish The liict before this Tribunal that he has worked more days than the Petitierer. In such circumstances , the prayerfor firstatement in the services or Respondeo Rank cannul be given to the Peritinner and , therefore , the claim is ute dismissed with costs .

HARYANAAND ORS.VA PEARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees whe bave continued for more than a year shouldbe regularised, we find it difficult ro sustain it . The direction has been given without reference to the existence of a vacancy. Thedirection in effect means that every ad -hoc! teinporary czuployee who has been continued for one year should be fregulurised even though : ( a) no vacancy is available for him which means creation of a vacancy ; ibi be was not sponsored by Employment Exchange nor washe appointediin pursuance of a notification calling l'or applications which means he had entered by a back door; (c) he was tot eligible and qualified for the post at the lime of bis appointment ; ( di his record of service since his appointment is a satisfactory . These are the additiona problems indicated by us in para 12 which would arise from: giving ot such blanker orders . None of the decisions relied upon by the High Court justify such wholesale. unconditional orders . Moreover . from the mere continuation uf an ad-hor employee for one year , in ca 기기이 be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends 10 several years . Further , there can he iki rule of humb in suen anallers . Conditions and circumstances of une unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, inaonotbe held thar in each and every case, such a direction must fellow irrespective of and without taking into account the other relevant circumstances and considerations . The reliet must be mouldest in each case having regard to all the relevant lacts and circumstances of that case . It cannot be a mechanical aut but a judicious one , l'torm this , the impugned directions perust be held to be totally untenahle and unsustainable . Thus , the Supreme Court set aside the orders of lower Counts . He further relied on the decision reparted in 1997 USCC | ASHWANI KUMAR AND OTHERSVS. STATE OF BIHAR AND OTHERS wherein the Full Hench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees! whose entry itself was illegal and word is concerned , it is to he noted that question of confirmation er regularitation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or an ad - hoe busis against an available vacancy which is already sanctioned . But, if the inimal entry leself is unauthorised and is not against any sanctioned Vacancy . question of regularising the incumbent on such a non-existing vacancy would never survive for comsideration and even if such purported regularisatına or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees, therefore , remained a

15 Learned Series Adele turther argued that evει in recent decision героитес із 20064 SCC. I Secretary , State of Karnataka Vs. Uma Devi , the Supreme Court has held that merelybecause intemporary employee от a casual wage worker is continued for a time beyond the term of his uppointmset , he would not be entitled to be absorbed in regular service or male permanent merely on the strength of such continuance , if the original appoinonent was riu made by tollowing a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitmeni ar the instance of temporary employees whrise period of employment has come to an end or of ad Fun: employees who by the very nature of their appointment . do not acquire any right ." Further , it has allec held that " it is not as if, the person who accepts an engagement either temporary el casual in nature is nei aware ofhis employment . He accepts the employment with open eyes. It may be true thar he is not in a positionto bargainalas length since he might have heen searching for some employment so as to eke out his livelihood and accepis whatever he gets . But un that groun alone , it would not be appropriate to jettison the constitutivoul scheme ofappointment, perpetuate illegalities and to take the view that a person who has temporarily ur 5069 [ भाग 1-साप्पा 3( ) ]

भारत का राजपत्र अगस्त 4, 2007/ श्रावण 13, 1929

the preparation ofwait list or number allotted to them . Under such circumstances, it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made no many allegatioos with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference . they have not questioned the setzlement nor the member allotted to each individual inthe wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was oot a bona fide in nature or it has been arrived at on account ofmala fide , onisrepresentation, fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temропагу employees to be absorbed, 1 find the Petitioners cam claim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further, the representative for the Petitioner contended that in a similar cases, this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence, the Petitioners are cotitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation, merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court bus also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation und outsourcing is evident , I find the Petitioner is not entitled το claim regularisation or reinstatement in the Respondeat Bank as alleged by him . Therefore , I find this point against thePetitioner .

casually got employed should be directed to be continued pennanently. By doing so, it willbe creating another mode of public appointment which is not permissible. " Further, che Supreme Court while layingdown the law , has clearly held that "unless the appointment is in terms of the relevan rules and after a proper competition among qualified persons, the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would notbe entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due prucess of selection as cavisaged by relevant rules ." Further , in CDI 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that "regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules, the same being a nullicy , the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise. " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR VS. SURLYDER KUMAR, the Supreme Court has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 ofthe Constitution ofIndia would be void in law. " Forther , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VES.C. PANDEY wherein the Supreme Court has held that only because an employce bad worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation, privatisation and outsourcing is evident , in view of the settled legal position, as noticed hereinbefore."

Point No. 2:

The next point to be decided in this case is to what relief the Petitioner is entitled?

20. In view of my foregoing findings that the Petitioner is a temporary employee and be is not entitled to be absorbed in regular service or made permanent merely un the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him. No Clusts.

21.Thus , the reference is answered accordingly .

(Dictatedto the P.A. , transcribed and ryped by him , comected and pronounced by me in the open court on this day the31st January , 2007).

K. JAYARAMAN. Presiding Officer 16. Kelying on all these decisions , learned commsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further , when they have not been questioned the five settlements entered into between the Respondent Bank and Federacion and since they have not questioned the waic list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was caly to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot tow question either 5070

THE GAZETTE OF INDIA: AUGUST 4. 2007/SRAVANA 13,929

[PART --Ser. 3 ( 1 );

Witnesses Examined:

W17 17-3-97

For the Petitioner

Xerax onpy of the Service particulars . J. Velmunigan

WW ] Sri K. Ramachandran WW2.SrV.5 . Ekambaram

W18 26-397

For the Respondent

Xerox copy of the letter advising selection of part time Menial --G. Pandi MW( Sri C. Mariappan MW 2 Sri C. Ramalingam

W19 36-3-97

Documents Marked-

Xerox copy of the appointment order to Sr. C. Pardi

Lix. No. Date

Description

W 1-산-85

Feb. 2005

W20

Xerox copy of the paper publicating an saily Thanthi based on Ex .M1 .

Xerox copy of the pay slip of T. Sekar for the month of February . 2005 wail list Nc . 395 ofMadurai Circle 204 №

₩21 13-2-95

Хегох copy of the administrative guidelines issued by Respondent/ tank lor implementation ofEx .M1 .

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wail lis? 244-91

W22 9-11-92

Хегох соpy of the circular of Respondent/Bank to all Brapcite > regarding absorption of daily wagers in Messenger vacarkies .

Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W23 9-7-92

Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

Xerox copy off the minutes of the hiparтие meeting.

W's

: 20-08-11

24 9-7-92

Хегox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers.

W6 15-3-97

Xerox copy of the settlement between Respondetu Bank and All India Stuff Bank of India Staff Federation for implementation of noras creation ofpart Lime general attendants .

Xerox copy of the circularletter of Zonal Office. Chennai shout filling up of vacancies of messenger posts .

רגו

W25 7-2-06

24597

Xerox cupy of the Local Head Office Circular circular about conversion of part time employees and redesignate them as general arendants.

Xerox copy of the circular of Respondent /Bank to ail Branches regarding identification of messenger vacancies and filling them before 31-3- 97.

W26 31 12-85

Xerox enpy of the local Head Office circular about appointmentoftemporaгу employces in subordinate cadre.

Xeron copy of the instructions in Reference book on staff about casuais not to be engaged at office/branches 10 tio messengerial work.

FartheRespondent/Management :-

315-96

Ex . No. Dale

Description

Хегох copy of the service certificate issued by Janapachatran Branch.

MI 17-1187 Xerox copy of the settlement WIG 12-98

M2 16-07-18 Xeri cupy of the settlement .

Хется сору of the service certificate issued by Janapachacram branch .

W!! 25411-85

M3 27-10-88 Xerox copy of the settlement .

Xerox copy of the service vertificate issuedby Janapachatram branch ).

14 0941 91 Хегоox copy of the sellement .

W12 M

MES 30-07-96 Хетох topy of the settlemeal .

(806-95 Хекх copy of the minutes of conciharion piceedings.

Xerox cupy of the administrative guidelines in reference book on stall matters issued by RespondentBank regarding recruitmem 10 subordinate cadre & service vonditions .

W13 Nil

28-05-9% Хегоx copy of the order in W.P. 10787291 .

Xerox sxpy of the Reference bock en Statf matters Vol . Il consolidated uptu 3112-95.

15-08-98

₩ 14 5-1-91

Хетоx copy of the order in O. P. No. 278797 ofHigh Court of Orissa

419 10-01-99

Xerox copy of the call letter from Madurui Formal allice for interview of messenger post-V. Muralikanoan

Хетох сopy of the order of Supreme Court in ST.PNo 3082/99 .

MIO N

Xerox empy of the wait list of Chennai Module.

Xerox copy of the call letter from Maduis: onal oftice for interview of Messenger post- K. Subburaj

W16 5-3-97

Mil 25-10-99

Xerox onpy ofthe callletter from Madri zonal office for interview of messenger pus: --J. Velnurugan

Xerox copy of the order passed in C.MP No.16289 and 16290/99 in WA No. 1803/99 .

[ भाग II साप्फ 3 (ii) ]

नई दिल्ली, 19 जुलाई , 2007

का.भा. 2200.-औधोगिक विवाद अधिनियम, 1947 ( 1947 का ( 4 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विकार में केन्द्रीय सरकार, औद्योगिक अधिकरण/ अम न्यायालय , चेत्रई के पंचाट ( संदर्भ संख्या 244/2004 ) को प्रकाशित करती है , को केन्द्रीय सरकार को 19-7-2007 की प्राप्त हुआ था ।

[सं एल-12012/461/ 1998 - आईकार ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी NewDelhi , the 19thJuly ,2007

S0. 2200.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government bereby publishes the award (Ref. No. 244/ 2004) of the Central Government, Industrial Tribamal-com- Labour Court, Chemai as shown in the Amexure in the Industrial Dispute between the management of State Bank of India and their workmen , received by the Central Government on 19-7-2007.

[No. 1-12012461 / 1996- IR (B- I) ] AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTIAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, CHENNAI

Wednesday , the 31st Jommany,2007

PRESENT:

Shri K. JAYARAMAN, PresidingOfficer Industrial DisputeNo. 244/2004 (Principal Labour Court CGID No. 171/99) (In the matter ofthe dispote for adjudiation under clause(d) of sub-section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Meanagement ofState Bank of India and their workmen)

BETWEN

5071

भारत का राजपत्र : अगस्य 4 2007 / आवण 13 , 1929

the dispute on its filet COID No. 171/99 and issued notices to both parties. Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution of this CGIT cum labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as 1. D. No.244/2004.

2. The Schedule mentioned in that order is as follows:

"Whether the demand of the workman Shri K. R. Jayavchu wait list No. 452 for restoringthe wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so, to what relief the said workom is cntitled? "

3. The allegations of the Petitioner in the Claim Statement are briefly as follows:

: IParty/Petition

Sri . R. Jayavelu

AND

TheAssistunt General Manager, II Party /Management StateBank of India,

Z. O. Chennai.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative

: Ms. K. Veeramani For theManagement

Advocates

AWARD

1. The Central Government Ministry of Labour, vide Order No. L- 12012/461 /98 - IR (B- I) dated 12-2-1999 bas referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Coun has raken 3218 GL07-33

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class TV cadre in State Bank of India and he was gival appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Thiruvallur Main sbranch from 17-5-1984. The Petitioner was orally informed that his services were Do more required. The non-carployment of the Petitioner and others became subject maner before Supreuse Court in the form of Writ Petition filed by State BankEmployees ' Union in Writ Petition No. 542/87which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter, filed a copy of settlement onder section 18 ( 1 ) reached between mauragement of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workanen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified theworkmen under three categories namely A , B and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertiscrocots . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Thiruvallur branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where be initially worked as a class IV employee . Prom 17-5-1984 , the Petitioner has been working as a temporary messenger and sometime performing work in other branches alsn . While working on temporary basis in Ambatter state branch, another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-1997 that his services are not 5072

THE GAZETTE OF INDIA: AUGUST 4 , 200 SRAVANA 13 , 1929

PART IS ( i) ] required any more and be need not attend the office from 1-4-1999. Hence, the Petitioner raised a dispute with regard this non-comployment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribuoal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the RespondentBank to continue to engage him in service as obtained prior to 31-3-1997 and to regularise hirt in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to the Respondent/Bank, it engagedithe Petitioner only in temporary services after the settlement .The Petitioner was not aware of settler.extby which bus services and number of days worked by bum afier interview do not therit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent Bank before the conciliation officer.Therefore, the Respondent's action in pot absorbing him in regular service is unjust and illegal . Further, the settlemerus are repugnant to Section 250 & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of Para522 (4) ofSastry Award . Even though the settlement speaks about three categories only a single walt list hus been prepared and the RespondentBank has been regularising according to their whims and fancies . The Respondent/Baok has also not observed the instructions regarding grant of increments , leave, medical benefins erc . to the termporary workmen which amounts to violation of relevant provisions of circular. The Respondent Bank engaged the Petitioner and extracted the same with bypayment of petty cash or by directing him to work under assumed parce or by both which amounts to unfair labour practice. Thewait list suffers serious infienpitics and il is opt based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this, the Respondent in its Counter Statement alleged that reference made by the Govt . adjudication by this Tribunal imself is not rosinaajtabe . The Petitioner was not in continuous service . Hence, the question of regulat appointment/ absorption does not arise. The engagement of Petitioner was not authorised The Petitioner as estropped from making claim as per Claim Statement . The settlement drawn under provisions of Section 184( 1 ) and 18 (3 ) of J.D. Act in ficu of provisions of Jaw, retrenchment and implemented by RespondentBank . The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facis that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down ir. seniority. Due to the business exigency, the Responдени Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevaiting ' from the year 1970 onwards . Such of those

empyees who are claiming permanent absorption and when their case was espousedby StateBank of India Staff Federation which resulted in five settlements dated 17-11-1987, 16-07-1988,07-10-1988,9-1-1991 and30-7-1996. 'the said settlements became subject matter ofconciliationt proceedings and minutes werd drawn under section 18 (3 ) of1.D. Art . In terms thereof, the Pellioner was considered for permanem appointment as per his eligibility alongwith simicarly placed uther temporary employees and the Petit.oner was war listed as candidate No.720 in wait list ofZonal Office, Chennai . So far 357 wait listed teroporary candidates , out of 744 wail isted temporary employees wеrе pествлently appointed by RespondentBank . It is folse to allege that the Petitioner worked as a termporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of sertlements chawn as per retrenchment provisions referred to above . cannot turn around and claam appeiorerent. Such of those temporary empinyees who were appointed were engaged for more number of days und hence , they were appointed. Under the settlement , employees were categorised as A.Baalkl C. Considering thest letoporary service and subject to other elsgibility criteria.. under category 1A, the temporary employees whin were regared to 240 days were in be considered and under category ( 6 ) the temporary employees to have completed 270 days aggregate temporary service in any continuvas hinck of 36 calendar months and under category (C ) the semporary employce who have computed 30 days agpiegate temporary service in any calendar ser afrei 1-7-25 01 namun 70 days gattemporary service in any continuous block of36 calendar months were to be considered. As per clause 7 , the length of tempo..ry service wine tu be considered tez seolurity in the wait list arkt i was also agreed that wait isi was to lapse in Deverr.ber . 1991 and the cut off date was extended up to 1-1-1997 lang up vacancies which were 10 arise upto 3199 The Petitoner has no valikd and enforceable righ : for appointment . The Respondent had implemented the voluntary retirement scheme and ever the permarert varacies stand substancially reduced. There were no regulas vacancies available. The peculia problem was due to the that all the aforesand temporary employees were working in rave vacancies and not in regular permanent vacanels, In terms of aforesaid settlements ,out of 44 want : sed.camlidates . 357 tempoмагу employees were appa ule and since the Petitsuner was watt lasted at45 l'he was appointed The said settlements were bona fide which were the only workable solution and 1s binding on the Petitioner . The Positioner is estopped from questioning the settlements Sites y or indirectly and his claam is liabee to be receber, the said senleaner is were not questioned so far and she settlemen's of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment Conferment of Permanent Starus ro Wurkmen ) Act, 1981 does not apply in Respondent Rank and this Tribunal has no jurisdiction to entertana such plea. It is not correct in say char documents and identity of Petrtioner was verified 5073

अगस्त 4, 2007/ श्रवण 13. 1929

भारत का राजपत्र

[ भाग - खण्या 3 ( l) )

thereupon as temporary messenger is justified?"

(3) "To what relief the Petitioner is entitled?"

Point No. 1:

before the Petitioner was engaged. It is also not come say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temротту empinyecs and vacancies for 1995-96 has to be tilled up against the wait list drawn for appointment of daily wages / casual labour . Further, for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait lust for the appointment of tempoгагу employers. After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence , for all these reasons, the Respondent prays to dismiss the claim with costs.

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the commected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in bereds ofthe relevant guidelines / circulars of the Respondent Bak In permanent vacancies in subordinate caire un temptary basis. After engaging them intermitteally for some years. the Petitioner in this case and other Petitioners in the connected dispales were terminated without any netice. Since theResponden /Bank ketrainated several temporary employees in the year 1985, the State Bank Employees Union had filed aWrit Petition before the Supreme Court in protect the legal and constitutional rigials ofthe workmes concerned and while the matter was pending in Writ Petition No. 542 (Civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before lise Supreme Court at the time of final bearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Banik and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any Intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as vajust and illegal and they further prayed for reinstatement with back wages and ether attendant benefits .

5. In the additional claim sistement , the Petitioner rontended that he was having been sponsored by employment exchange and having undergone medical examination , the Peutioner bas fulfilled the criteria serout by the Respondent/Bank for selection of candidate for sppointment in the post of messenger and other class IV posi . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bmk continuously wita deliberate and artificial breaks . Therefore, the RespondentBank is duty bound to regularise the services the Petitioner as he has acquired the valuable right ensstined in the Constitution of India. In the year 1998, the RespondentBank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus, the Respondenty/Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class TV category , the Responden Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respondent B has been arbitrarily filling up the vaccumcies with the persons other than wait listed workmen accordingto their whims and fancies. Hence , the Petitioner prays that an award may be passed in his favour .

6. Again, the PetiGoner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank ofIndia Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules of theRespondent/Bank, recruitment of class TV staff in the Respondent Bank is in accordance with the instructions laid down under endified circulars of the RespondentBank. Even in the Writ Petition before the High Court in W.P.No. 7872 of 1991 , the Petitioner questioned the seulement dated 27-10-88 and 9-1-91. It is false to allege that the settlements are contrary to the rights ofthePetitioner. Hence , the Petitioner prays that an award may be passed in kis favour .

7. In these circumstances , the points for my consideration BTC :

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees intheRespondent/Bank under the guidelines and circulars issued by the Respondent/Bank froma time to time and further, the same guidelines carry the procedure for regularisation of service of the teamporary carployens and any settlement in this regard is redundant and in any caso, thePetitioner is not bound by settlement under Section 18(1) catered into between the alleged Poderadond the Respondent/Management. They further comeaded that though the Respondent/Bank has started that the Petitionz has not worked for more than 240 days in a corticous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore, they have no valid d enforccable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at brunches / offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions ofChapter VA of the I.D. Act and it is preposterous to contend then the (6) "Whether the demand of the Petitioner in Walt List No. 452 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment 5074

THE GAZETIE OF INDIA : ALOUST 4, 2007 /SRAVAΝΑ 13 1929

[PART 11- SEC. 3 ( ia ) Petitioner has no valid and enforceable right for appointment as Section 250 and 25H are very much applicable up the Petitioners who are retrenched messengers and are eligible to be reinstated .Leamed representative for the Petitioner contended that in 1996 1.AB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the SupremeCourt has beld that Chapter V -A of the LD.Act providing for retrenchment is not enacted only for the benefit of the workmento whom Section 25F applica but for alt cases of retrenchment. Therefore, the application of Section 25H cannot he restricted only to one category of retrenched workmen . Therefore , the comention of the RespondentBank that the Petitioner has no valid and enforceable fight for appointorent is antenable. It is further contended that on behalf of the Petitioner that Ex . 42. W3 and W8 as cell as Ex . M8 which constitutes/relace as the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Fortber , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross- examination will clearly show how the bank has given a raw deal to the Petitioner frun the beginning linking his future with the settlements. Further , Clause I of Ex. M1 deals with categorization of retrenched temputату employees into 'A, B and C " , but this categorization of A, B&C is quite opposed to the doctrine of "last come first po' or' first cone last go ' and therefore , the categorization in Clause 1 is illegal . Clanse I ( a ) of Ex.MI provides an opportunity to persons who were engaged on casual basis and altowed 10 work in leave/ casual vacancies of messengers , farashes, cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention ofthe guidelines montioned in ReferenceBook on Staff matters, copy ofwhich is marked as Ex .W8. Further , the appointment of daily wagebasis for regular messengerial jobs exc . are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this ameadment which includes casuals affecting their interest and chance . Further , as per instructions in Ex.W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case. Those candidurs under. Fix M10 were found suitable for appoinical ва тезаpors and sweepers. Even MW 1 is it to say as to when the wait list Ex M10 was prepared, but it is nsentioned in Ex.M10 that it was prepared bezdine the sphilomeni daund 17-11-87, 27-10-88 and 9-1-91 which toe marked Ex.Ml , M3 and M4 respectively. But, when MWI has spoken about the settlements ,he sapocod that spalement dated 27-10-88 vas

dut included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except bis bald statement. Further, according to MW ] wait list under Ex.MIU was prepared on 2.5-92 but there is no pleading in the Counter Stamement with regard to this wait list. Further theHon'ble High Court has held in its order dated 23-7-99 o W.P.No. 7872 of 1991 , which is roarked as an exhibir , 10 which it is stated that " it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlertient while che 1988 settlement dealt with daily wager in Class TV category who were paid wages dai. mutual agreement basis. In sucin ciscumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlenient since bey bonned two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts 10 violation of Article 14 of Constitution of India . Further, the veriment of MW ! and the statements in Counter statement are conpary to the aixove and it is nothing but a desperate attempt to wriggle our the illegality committed or perpetrated by the Respondent Bank by combing equals with unequals . It is furchen vontended on behalf of the Petitioner that as per depasitina of MWI want list under Ex.MIO comprises of buth messengerial and non- messengerial candidates ,While the temporary employees were appointed after due process of selection and were paid wages on the hasis of industry - wise seulement , it is not so in the case of casuals . Therefore, both belongs to two different and distiner categories . But , Ex.MA provides for the same norms to the vasuals as in the case of Lemporary employees in the matter of absorртоп . Therefore, it is violative of Article 14 & 16 of Consaitution of India. Therefore , the Peticinner contended that prepararion ofEx.M 10 namely wait list is not moonformity with the instructions of Ex.M1 and non - preparatiom ol separate panels amounts to violation of circular . Secondly, ithas not been prepared as per inseructions in Fx W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore . I wait list was released published even after the Court order in WMP No. 11932/91 in W.P. No.7872/91 directing the Respondent/Banklo release the list of successful candidates pursuantto the first udvertisement published in The Hindu dated 1-8-8.8. Furthermore, wait list under lix . M10 does not carry particulars about the candidates daje ud initial appointment and the number of days put in hy them to arrive at their respective senority. From all these things, it is clear that Ex . M10 has been prepared in violazion ol' instructions and ceased to have the credibility atrached to the wail list . Above all, Ex . Ml was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chentai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/ Bank has alleged that these petitioners were engaged in leave vacancy , they have not been sold ut 5075 [भाग-सान्द 3( 6) ]

भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

Above all , though the Respondent Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference pariod and hence evidence of Respondent/ Bank has no application 10 the Petitioner's case. The Petitioners have completed the service of 240 days and more in a continous period of 12 calendar months sa enshrined under section 25B med 25F of the Industrial Disputes Act, therefore, their retrenchuument from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service ofthe Respondent/ Bank and they are entided to the benefits under the provisions of I.D. Act. It is further contended on behalf ofthePetitioner thurt though some of the Petitioners in the commected I.Ds have not completed 240 days , since theRespondept/Bank has not taken into consideration and Dot included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months .He also relied on the ralings reported in 1985 ΤΙ LLJ $39 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that the expression 'actually worked under the employer' cannot mean that those days onlywhen theworkmen worked with harmoor , sickle or pen but thust necessarily comprebend all those days during which they were in the carployment of the employer and for which be had been paid wages either under express or implied contract of service or hy compulsion of statute, standing orders etc." It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reportedto havesubmitted their application for absorption as per the bank'sinular and therefore, their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagem on account of settlements /lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of40 to 50 years and for no faulr oftheirs, they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

10. But, as against this, the learned senior counsel for the Respondent/Bank contended that the reference made bytheGovernment itself is not maintainable in view ofthe facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected dispotes were not in contindous service. Hence , the question of regular appointment / absorption does not arise at alt and their engagement was not authorised . Further , the Petitioners are estopped from malking claim as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18(3 ) of the ID . Act , in lieu of the the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that theywere engaged in leave vacancy was used as a device to take them our of the principal clause 2 (oo ) of the L.D. Act, 1947. Though the Petitioner's work in the Respondent Bank is continuous and though the Petitioner has perfonned the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SOC 201 EFLD. SINGHVIS RENERVE.BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employwortmen as 'badlies casuals or temporaries and to continuer them as suckfor masry years with the object of depriving them of the status and privileges ofpermanent workmen is illegal " Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle of seniority in the legal sense. since the selected candidates wiù longest service should have priority over those who joined the service letter and therefore , thewait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus, the Respondero/Bank has not acted in accordance with the Law and the spirit of the settlement , but in witer violation und in breach of it . Though clause 2(e ) of Ex . M4 stakes that candidates found suitable for permanent appointment willbe offered appointment against existing/ future vacancy anywhere in module or circle and in care, a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent Bank has not produced any documentto show how he has arrived at the seniority and till dare , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the avernent of MWI . Therefore , the termination of the Peticioner who was in regular service of theRespondeist/Bank is arbitrary, mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has producedEx . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) . Hyderabad, it is neither a 18(3 ) seulement por 12 (3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . Mó . Though the Respondent/Bank produced Ex. M7 and MI interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No.7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case ofthe Petitioner , Further, though the Respondent / Management has examined two witnesses, the deposition of management witnesses during the cross examination bad became apparent that they have no personal knowledge about the seulements which are marked as Ex . M ! to M5 .

5076

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13.12

PART I- SEC. 3 ( і ) ]

of the first category has limard application and binds merely parties to it and settlement of the second category made wish a recognised majority union has extended application as is will be binding on all workmen of the establishment. Even in case of the first category, if she settlement was reached with a representative ωπίση οι which the contesting workmen were members and if there was nothing unreasonable or anfair in the terms of the seulement, it must be binding in the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INLETRIES I.TD. VS. STATEOF RAJASTHAN AND OTHER rein the Supreme Court has held that " settlement is arra by the free will of the ovarsies and is a pointer to there being good will between them. When there is a dispure that she settlement is not brona fide in nature or thar is has beenarrived at on accouns offraud, misrepresentation or concealment of facts or even corruption and othe inducements, it could be subject matter of yet anoth industrial dispute which an appropriate Govt. may ref for adjudication after examining the allegations as the is an anderiving assume that the sessiemen! reache with the help of the concitation officer must be fair an reasonable." Reiving on all these decisions , learner . counsel for the Responsent contended that though it: alleged that they are aarties to the settlement. since the federation in which the Petiooner is also one among them they have entered into settlement with the bank arc rherefore, it is binding the Peticones. Further ,be argue thae 10 Tnion of the bank lias questioned the settlernent and in such circumstances , it can be saad that it is no binding on them ami ne is estopped from ( lasputing the sambe.

11. Learned course! for the Respondent further xintended that thougla the reference made in this case and other evenected disputes whether the demand of the workman with wait lisa N1, given for restoring the wait list of temporary messengers the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified? The Petitioner contended tha: the netrenchment made by the Respondent/Bank is wil walid and he has to be reinstated in service with full back wages ele Hence , the Petitionens contention against the relerence made hy the Govt . is nat valid. Further . in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not instatement as alleged by the Petitioner in the Claum Statemen

provisions of law and implemented by the Respondent Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive. Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed ashe was positioned down in the seniority. The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of datica as messenger . Further, the allegation that he was sponsored by Eroployment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they . were engaged against leave vacancies . The settlement entered ind by the Responderu/Bank and the federation werebonafile which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the senlement and accordingly he was wait listed and therefore , the Pentioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questionedby any union and the settlements wore bank level settlements and operate throughout the country. Further , be relied on the rulings reponech in 1991 ILL 323 ASSOCIATEDOLASS INDUSTRIES LTD. V INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of workinen and the workshen resigned from the job and received terminal benefits , but the workmen raised a plea betore the Tribunal that they did not resigo voluntarily. But the Andhra Pradesh High Court has held chan " in the labsence of plea that the settlement reached in the course of conciliation is visinted by fraud, mucrepresentation or coercion, the settlement is binding on the workpen " Learned cotasel for the Respondent further relied on the rulings reported in 1997 LLJ 2189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefare of settlement arrived at in the course of the conciliation proceedings with a recognised majority union will beibinding on all workmen ofthe establishment, even those who belong to the minority union which had objected to fu same. To that extent, it departs from the ordinary lawofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and so discourage wr individual employee or aminority union from sculling the settlement." It further held that "shere may be exceptional cases, where there may be allegations of uala fides,fraudor even corruption or other inducements.Bus, in the absence of such allegations, a secilement in the course ofcollective bargaining is entitled to dare weight und consideration " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.C.P. LTD.V. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divuled into two categories namely ( i) those arrived at ourside the conciliation proceedings under section 1841 , of the 1.D. Act and fit, those arrived at in the course of conciliation proceedings under section 18(3). A settlemens

12. Bul, us against this on behalf of the Petitioner it is contended that mere warding of reference is not decisive in the matter of tenability of a referenue and he relied on the cutings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JIJAHOILL AND SHOP WORKERS UNION VS. INDUSTRIAI. TRUUNAL. KOLLAM wherein the Kerala High Court has he that " mere warding of refететке is not decisive in the maner of tenability of a reference. Even though the Tribunal cabout gu beyond the order ne reference , if points of difference are discernible 'rum the 5077

भारत का शवपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[ भ्यगखष्ठ 3( ⅱ) ]

material hefore it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference . subjecting the poor workman to hardship involved in rooving the machinery agan. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of thePetitioner to find out the exact nature of dispute instead of refusing to answer the reference on merles. " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not forwhich he relied on the rulings reported in 1998 LABIC 1664 VANSAGNATHAN ORIENTPAPER MILLS VS INDUSTRIAL . TRIBUNAL & ORS , whereintheMadhya Pradesh High Court has held that " the Tribunal cannot go bebind the terans of reference , but thar does not mean tha itssons look into the pleadings of parties ." He also relied or the rulings reported in 1998 LAB IC 1507 A. SAMBANTIAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it bas been repeatedly held that the Labour Court should not atempt to consider the order under reference in atechnical miutiner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner." He also argued tha ; in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Coun has held that " the Tribunal nas jurisdiction to consider all incidental matters also and the order of reference should not be consqued in the manus which would prolong the industria, adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view . should consider the order of reference in u fair and reasonable manner , though the order of reference is a heppily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the Teference, it is not mentioned that wieder the retrenchiment is valid or not. trom the pleadings it is clear that the Petitioners have been retrenched from the Respondent Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide wherher the Petitioner is entitled 10 be reinstated in service as alleged by hian and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of relereave is without any substABINE

13. I find some force in the conrention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to bim or nor? But , 1 find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned try any of the unions of the Respondent' Bank, I find the Petitioner is not entitled to question the sertlement,

should be reinstated in service and he relied on the rulings . reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V.VIJEESHwherein the Supreme Court has held that "the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in a existing or a future vacancy. " In that case, pruning of sefect list on reduction in number of vacancies was tunde in viewof the impending absorption of steam surplus spff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain mumber ofbortom реrѕоль wеrе пуmoved from the select list and the roamatning selectees were given appointments according to their coomparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6 SCC584 SYNDICATE BANK & ORS VASHANKAR PAUL AND OTHERS wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was notto confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that theRespondents did not get any right because of inclusio of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel .The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has beld that " candidates included in merit list has no indefeasible rightto appointinent even if a vacancy exists " and relying on alt these decisions , learned counsel for the Respondent contended that since the Petitioner has no night to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list. it cannot be said that preparation of wait list was made with mala fide motive .Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS .VI PLARA SINGH AND OTHERS wherein the Supreme Court has beld that "how coming to the direction that all those and hor: temporary employ.ccs who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-ho temporary employee who has been continued for one year

should be regularised even though ( a) 10 vacancy is 14. Then the learned counsel for the Respondent contended that since the Petirioner mentioned that he has beer: kept in the wait list and the time of wair list has been exhausted , now the Petitioner cannel question thui he 5078

THE GAZETTE OF INDIA : AUGUST 4, 2007/ SRAVANA 15 , 1929

[PART 11- SLC . Згід

circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchiment therefore, cumot be stretched to such an extent as to cover these employees. Since they are only daily wage employees and have no right to the posts. then disengagement is nut arbitrary ." He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the LD.Act retrenchment procedure following prociple of "tast come - first go' is not mandatory but only directory, on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . Though in this case, the Petitioner has alleged that his juniors bave been made permanent in banking service. he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank .Any how . if the Petitioner has shown anything , the Responden /Bank is ready an establish the fact before this Tribunal that he has worked more days than the Petitioner In such circumstances , the prayer for reinstatement in the services of Respondent Bank cannot be given to the Petitioner and , therefore , the claim is to be disroissed with ८०४१४.

availlable forhim which means creation of a vacancy ; (b)he was oot sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back dour (c) he was int eligible and qualified for the post at the time of his appointment ; ( d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving ofsuch blanket orders . None of the decisionsrelied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad -hoc employee for one year , it canool be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of humb io such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The reliefmust be moulded in each case having regard to all the relevant facts and dircumstances of that case. It cannot be a mechnical act but ajudicious one. From this, the impugned directions must be held to be totally untecable and unsustainable. Thus, the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported 1997 11SCC 1 ASHWANI KUMAR AND OTHERSVis. STATE OFBIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, ifthe candidate concerned is appointed in an irregular minner or on ad-hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it wouldbe an exercise in fatility. It would amount to decorating a still born baby. Under these circumstances , there was no bocasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a mollity." "Therefore , learned counsel for the Responderu contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy und they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SEC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VE STATE OF BIHARAND ORS . wherein the Supreme Court has held that "they are temporary employees working on daily wages . Under these

15.Learned Senior Advocate further argued that even in recent decision reported in 2006-45CC 1 Secretary , State of Karnataka Vs. L'ma Devi , the Supreme Court bas beld that merely because a temporary employee or a casual wage worker is continued for a time beyond the term ofhis appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the origintal appointment was not made by following a due process of selection as envisaged by relevant roles . It is not open to the Court to prevent regular recruitment at the instance oftemporary employees whore period of employment has come to an end or ofad- hoc employees who by the very nature oftheir appomboneal , do not acquire any right . " Further , it has also held that "it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment .He accepis the employment with open cyes . It may be true that lue is not in a position to bargain not at arms length since he might have been searching for soare employment so as to eke vut his livelihood und accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perperuate illegalitjes and to take the view that a personwho has temporarily or casually got employed shouldbe directed to be continued permanently . Bydoing so , it will be creating another mode of public appointment which is not permissible ." Further , the Supreme Court while taying down the law, has clearly held that " onless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would ont confer any right on the appointee..... It has to be clarified that merely because a temporary employee of a casual wage worker is continued for a time beyond the tern of his appointment , he would not be entitled to be absorbed in regular service ur made permanent merely on 5079

भारत का राचापत्र अगस्त 4, 2007/ श्रवण 13 , 1929

[ भाग खन्य (il) ]

settlement and they have not alleged that settlement was not abona fide in nature or it has been arrived at on account of mala fide, misrepresentation, fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners caut now question the settlements at this stage and since they are only sempoгary employees and since it is not shown before this Tribunal that the Respondent/Bank his gut sanctioned posts for teamрогаму employees to be absorbed, I find the Petitioners cammol claim for reinstatement or regularisation in services ofthe Respondeat /Bank.

18. Further, the representative for the Petitioner coptended that in a similar cuses , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nanare and beute, the Potitioners are notitiod for the same relief.

19. But, I find since the Supreme Court has bold that temporary employees are not intitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court hat also held that each case most be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably hurving regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent Bank as alleged by him. Therefore, I find this point against the Petitioner.

the strength of such contimsance, if the original appointmen was not made by following a due process of selection as envisaged by relevant rules . Further , in CDJ 2006 SC443 National Fertilizers Ltd. and Others Vs. Soravir Singh. wherein the Supreme Court bas held that "regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question ofconfirmation of an employee upon the expiry of purported period of probation would notarise." Further , in CDJ 2006 SC: 395Municipal Council, SujanpurVs. Surinder Kumar , the Supreme Court has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a 'State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its comployees was bound to follow the recruitment raks . Any recruitrocat made in violation of such roles as also in violation ofconstitutional scheme epubrined under Article 14 and 16 of the Constitution of India would be void in Jaw. Further, in 2006 2 LLN 89 Madhya Pradesh State Agro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employce bad worked for more than 240 days of service by thu itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that "the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, in view of the settled legal position, as poticed hereinbefore."

Point No. 2:T

The next point to be decided in this case is towhat relief the Peritioner is entitled ?

20. In view ofthy foregoing finding that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continnance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs.

21. Thus , the reference is answered accordingly.

(Dictated to the P.A, transcribed and typed by him. corrected and pronounced by me in the open court on this day the 31st Januвгу. 2007)

K. JAYARAMAN, Presiding Officer

For thePetitioner WW1 Sri R. Jayavelu 16. Relying on all these decisions , learned counsel for the Respondent commended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sancloned post , the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements catered into between the Respondeau Bant and Federation and since they have not questioned the wait list prepared by the Responden/Bank, they are 104 entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was onlyto restore the wait list and also for appointthent thereon as temporary messenger as pet wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amendedby settlements, the Petitioners camos now question either the preparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

ww2SrV.S . Ekambaram For the Respondent MWI Sri C.Mariappan MW2 Sri C. Ramalingam

Documents Marked

Description

Ex. No. Date

1-8-88 W1 Xerox copy of the paper publication in daily Thanthi based on Ex. MI .

17. I find much force in the costtention of the leamed counsel for the Respondent. Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation ofwait list and also settlements entered into between the Respondent/Bank and Federation: at the time of reference, they have not questioned the settlement nor the mumber allotted to each individnal in the wait list Further , the Petitioners have not questioned the

3218 G07-34 5080

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13, 1929 [PART I-SBC 3 ( i ) ) 204-88

W19 17-3-97 Xerox copy ofthe Service particulars J.Velmurugan .

Хегоx copy of the administrative guidelines issuedby Respondent /Bank for implementation ofEx. M1.

W20 26-3-97

2444-91

Xerox copy of the letter advising selection of part time Menial G.Pandi.

W21 31-3-97 Xerox copy of the appointment orderto Sri G.Pandi

Хегох copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in messenger vacancies ,

W4 1-1-91

W22 Feb. 2005

Xerox copy of the advertisement in The Hinda on daily wages based on Ex , W4.

Xerox copy of the pay slip ofT. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle. 208-91

W23 13-2-95

Xerox copy of the advertisement in The Hindu extinding Period of qualifying service todailywagers.

15-8-97

Xerox copy of the Madurai Module Circular letter about Engaging temporary employees froin the panel ofwait list.

W24 9-11-92

Хеток copy of the circular letter ofZonal Office, Chennri About filling up of vacancies of messenger posts.

Xerox copy of the HeadOffice circular No. 28 regarding norms for sanction of Thessenger staff.

25-3-97

W25 9-7-92 Xerox copy of the minutes of the bipartipe meeting

₩26 9-7-92

Xeres copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before31-3-97.

W M: Xerox copy of the instruction it Reference book on staff about casuls not to be engaged at office/ branches to do messengerial work.

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms creation of part time general attendants.

W27 7-2-06

Xerus copy of the service certificate isaned by ThiruvallurBranch.

₩10 9746

Xerox copy of the Local Head Office circular about conversion of part time employees and redesignate them as general attendants .

Xerox copy of the service certificate Issued by Ambattur Industrial Estate branch.

28 31-12-85

WIJ 47-96

Xerox copy of the Local Head Office about appointment of temporary employees in subordinate cadre.

Xerox copy of the service certificate Issued by Ambattur Industrial Estate branch.

For the Respondent/Management:--

W12 16-487

Ex. No. Date

Description

M1 17-11-87

Xerox copy of the service certificate issued by Ambemur Industrial Estate branch.

Хогох copy of the settlement .

M2 16-7-28

W13 1992/93

Хегоx copy of the settlement.

Xerox copy ofthe attendance register.

M3 27-10-88 Хетох copy of the settlemen W14 Nij

M4 91-91 Xerox copy of the settlement ,

MS 30-7-96 Хегоx copy of the seulement

M6 9-6-95

Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate care and service conditions.

W15 NI

Xerox copy of the minutes of conciliation proceedings.

M7 28-5-91

Xerox copy of the Reference book 몸 Staff matters Vol . III consolidated upto 31-12-95

Хегох copy of the order in W.P. No.7872/91,

W16 6-3-97

15-5-96 Xerox copy of the order in O. P. No.2787/97 of High Court ofOrissa.

Xerox copy of the call letter from Madural zomal office for loterview of messenger port-V.Muralikannam.

10-7-99

W17 6-3-97

Χοχ copy of the order of Supreme Court in SLP No. 3082/99.

Xerox copy of the call letter from Madini zooul office For interview of messenger post-K. Subanj .

Xerox copy of the wait list of Chemaj Module.

W18 6-3-97:

M11 25-10-99

Xerox copy of the call letter frostu Madurai zoml office for interview ofmessenger post-1. Vehmurugan .

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

50081

भारत क्य राममंत्र मस्त 4 2007/13 , 1929

[भाग - खण्ड 3(ii)]

नई दिल्ली, 19 जुलाई, 2007

referred this dispute earlier tothe Tamil Nadu Principal Labour Court, Chennai and the saidLabourCourt bestuben the disputeon its file CCD No. 170/99 and laswed netices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement mapectively. After the constitution of this CGIF -cum-Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal kas numbered it as LD.No. 243/2004.

कार.आ. 2201-भद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरक्पर , स्टेट बैंक ऑफ इणिडया के प्रर्थचतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष औधोगिक विवाद में पन्द्रीय सरकार औद्योगिक अधिकरण , चेां के पंचाट ( संदर्भ संख्या 243/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को जापा हुआ था ।

follow: 2. The Schedule mentioned in that order is [नं एल-12012/456/1998 -आईमार( बी-I ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 19th July,2007

"Wbodies the demand of the workman Shri P. Selvam,wait list No.607 for restoring the wait list oftemporarymesacuges in the establishment of StateBank of India and consequential appointmen tikareupon mpany messenger is justified? If 50,10what relief the said workının in cutitled?"

3.The allegations of the Petitioner in the Claim Statement are brieflyas follows:

S.O. 2201-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 243/ 2004) ofthe Central Government, Industrial Tribunal-cam- Labour Coun, Chennai as shown in the Annexure in the Industrial Dispute between the management of StateBack of India and their workman, received by the Central Government on 19-7-2007 .

[No. L-12012456/1998- IR (B- 1) ]

AJAYKUMAR, Desk Offic

ANNEXURE

REFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUMLABOUR COURT, CHENNAI

Wednesday, the31st January,2007

FRENINT

K.JAYARAMAN, Presiding Officer Industrial DisputeNo.243/2004

Principal Labour CostCGID No. 1799]

(In the matter of the dispute for adjudication under clause (d) of sub- section ( 1 ) and sub - section (A) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947), between theManagement of State Bank ofIndia and their workman)

BETWEEN

Sri P. Selvet

: [ Party /Petitioner

AND

: Priya سعو

TheAssistunt Geneal Mamaga , StateBank of lodia, 7.0. Chennai .

APPEARANCE

For the Petitioner

:Sri V. S. Ekamberam,

Authorised Representative

: M/s . K. Vetramani,

For the Management

Advocates

AWARD

The Pethioner was sponsored by Employment Exchange for the post of sub-staff in Class TV cadre in StateBank of India and he was gives appointment us messenger after an interview and medical exquination.He was appointed on tempariny basis at Kalpakkam branch frংজ্ঞা 24-10-1979. The Petitioner was orally informed that his serviceswere no more required. The non-carsployment of the Petitioner and others because subject matter luckuc Supreme Court in the form of Writ Petition filed by State BankEmployees' Union in Writ Pection No.542/87 which was taken up by the Supreme Court. The Respondent/ Bank, in addition to its counter , filed a copy of settlement under Section 18( 1 ) reached between cosment ofStunte Bank of India and All India State Bank of Ladia Staff Federation and the settlement is with regard to abuneption of Class IV temporary workmen who were denied Employment after 1985-86 were classified in the setilet was under cosalderation once again and they classified the workomen mder three categories mamely A, B andC. Though the classification was unreasonable, the Respondrat/Bank brought to the notice of the Petitioner about the interview to be held through advertisers. The Petitioner also submitted his application in the prescribed format through Branch Manager of the Kalpakkan branch. He was called for an interview by a Committee appointed byRespondent Bank in this regard But, they have not informed the result of interview and also with regard to appointmeat. Bed, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employes. From 30-5-1998 , the Petitioner luna bona working as a beatpocacy messenger and sometimes parfemting work in other branches also . While working on temporary basis in Chinduuripet branch , mobe advertisement by the Respondent/Bank w mac regarding casual workers who were reposted to be in service during the same priod. While the Petitioner was working as such, the Manager of the branch informed the Petitioner ocally on 31-3-1997 that his services are not 1. TheCentralGovernment Ministry ofLabour, vide Order No. L- 12012/456/98- IR (B-1) dued 12-2-1999has 5082

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 , 1929 [PART I-STIC . 3 ( ii) ] required aty more and be need not attend the office from 1-4-1997. Hence, the Petitioner raised a dispute with regard to his non- pamployment. Since the conciliation ended in Failure, the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , he reference framed did not satisfy the grievance of the etitioner , he has made a fresh representation to Govt . in consider the reference and the Petitioner requested the Responden Bank en continue to engage him in service as btained prior to 31- 1997 and to regullarise him in service + due reptre. The Respondent/Bank 100k up an Areasonable stand that the service and the number of says worked by Petitioner were treated as of no " зовequence, sir.ce according to the Respondent Bank. it ngaged the Petitioner only in temporary services after the themem. The Putiñoner was not aware of settlement vy which his services and number of days workedby hian after interview do not merit consideration . The Peritoner was not a party to the settlement mentioned by the Responderuaak before the conciliation officer . Therefore . the Respondent's sution in not borsing hard in regutar service is sajust and illegal Further , the settlerpents are repugnant to Section 25G & 25H of the LD. Act. The termination of the Petitioner is against the provisions of Para522(4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been Regularising according to their whims and fancies . The RespondentiBank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which astounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing hims to work under assumed name or by both which amounts to unfair Labour practice. The wait list suffers serious infirmities and iks not based on strict seniority and without any rationale. Hence, for all these reasons the Patitioner prays to grant reliefof regular employment in Respondent/Bank with all attendant bonelius .

prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87.16-7.88,7-10-88,9-1.91 and 30-7-96. The said seulements became subject matter of conciliation proceedings and moutes were drawn under section 18 (3 ) of 1.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility alongwith similarly placed other temporary employees and the Petitioner was wall listed as candidate No.607 in wait list (of Zonal Office , Chennan . So far 357 wait listed temporary candidates, out of 744 wait listed temporary employees were permanently appointed by RespondentBank .It is false in allege that the Petitioner worked as a temporary messenger The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitiones having submitted to selection process in terms of settlements drawn as per retrenutnem provisions referred to above, cannot turn around and claim appointment Such of those lemporary einpluyees who were appointed were engaged for more number of days and hence , they were appointed. Inder the settlement, employees were categorised as A, B and C. Coosidering their temporary service and subject to other eligibility criteria , under category ( A ) the temporary employees who were engaged for 240 days were to be considered and under category ( B) the tempогагу empinyees who have completed 270 days aggregate temporary service in any continuous block ul 36 calendar months and under category ( C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregare temporary service in any continuous block of36 calendar moreths were 10 be considered .As per clause 7, the length of termporary service was to be considered for seniority in the wait list ausd it was also agreed that wait list was in lapse in. Decentber . 1991 und the cut off date was exteraled up 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994. The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the afforesaidtemporary estiployces were working in leave vacancies and not in regular permatient vacancies . In terms of aforesaid sendements , our of 744 wait listed candilates , 357 temporary employces were appointed and since the Petitioner was wart tisuot st 607 he was nor appointed. The said settlements were bona fide which were the only workable solution and is binding on the Peillioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his canen is tiable 10 be rejecard. Further, the said settlements were not questioned by any union so far and the settlements of bank level sertiements and operated throughout the counu's . The Tamil Nadu Industrial Establishmedi (Confermera of Perithanent Status ro Workmenį Act, 1981

does not apply to Respondent Bank and this Tribunal has 4. As against this , the Respondent in its Coumer Statement alleged that reference saade by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service. Hence, the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised . The Petitioner is jestopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18 ( 1 ) and 18(3 ) of LD . Act in lien of provisions of law, retrenchiment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that hewas wait tisted as per his length ofengagement and could not be absorbed as he was positioned down in seniority. Due to the business crigency, the Respondent' Bank engaged the temporary employees for performaлиже of duties asimessenger and such engagements were i 5063 [भाग II- खण्ड (ii) ]

भारत की राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

temporary messengers in the Respondent Bank and consequential appointment thereupon as temporary messenger is justified?"

(1) "To what relief the Petitioner is entitled?"

Point No. 1:

no jurisdiction to catertain such plea. It is not correct to say that documents and identity of Petitioner was verified before thePetitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacaoсвоя про 31-12-94were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further, for circle of Chennai wait list of dailywages was not finalized and hence not publishedand there is only one watit list for the appointment of temporary employees .After the expiry of wait list, the Petitioner bas no claim for prmanent absorption. Hence, for all these reasons , the Respondent prays to dismiss the claim with COSIS.

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitionen. in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms of the relevantguidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some yeагь, the Petitioner in this case and other Petitioners in the connected disputes were terminated without my notice. Since theRespondent /Bank terminated several temporary eroployees in the year 1985 , the State Bank Employees Unionhad filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of theworkmen concerned and while the matter was pending in Writ Petition No.542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlementhas become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Tetitioners in the connected cases attacked this settlement as it is not binding on them on the ground that theyhave been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or Dotice denied an opportunity to work in the bank after 31-3-1997 and therefore,they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrtuchancut as unjust and illegal and they further prayed for reinstatement with backwages and other attendant benefius.

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set our by the Respondent Bank for selection of candidate for appointment in the post of messenger and other class V post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore, the Respondent/Bunk is daty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent Bank imposed toral ban for his future comploymeal. Even though there were sufficient tomber of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by thewait listedworkmen with ulterior motive. The Responden /Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies. Hence, the Petitioner prays that an award miay be passed in his favour .

6. Again, the Petitioner filed a rejoinder to the Coun Statement of the Respondent , wherein it is stated t للهتسط the settlements made by the bank with the State Bank of India StaffFederation were under Section 18 ( 1 ) of theAct and not under Section 18(3 ) of the Act. As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the RespondentBank. Even in the Writ Petition before the High CourtLo W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the setterbents are contrary to the rights ofthe Petitioner . Hence, the Petitioner prays that an award may be passed in his favour .

7. In these circumstances , the points for my consideration :

9. On behalf of the Petitioner , it is contended tha these Petitioners were recruited as temporary employees in theRespondent /Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary enaployees and. any settlement in this regard is redundant and in any . case , the Petitioner is not bound by settlement under Section 18( 1 ) entered into between the alleged Federation and the Respondent/ Management. They further contended that though the Respondent/Bank has stated that the Petitioner has that worked for more than 240 days in a continuous period of 12 calendar mooths and was not in cutinuous service on 17-11-1987, therefore, they have no validand enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they 0 "Wisather the demand of the Petitioner in Wait List No. 607 for restoring the wait list of 5084

THE GAZETTE OF INDIA : AUGUST 4 , 2007/SRAVANA 13 , 1929 [ РАКТ П- вс. 3 (ii ) ] have invoked the relevant provisions of Chapter VA of the L.D. Act and it is preposterous to contend that the Petitiones has no valid and enforceable right for appointment as Section 25G and 25H are very much applicableto the Petitioners who are retrendbed messengers and are eligible tobe reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the LD.Act providing for retrenchment is not enacted only for the benefit oftheworkmen to whom Section 25F applies but forall gasesof retrenchiment. Therefore, the application of Section 25H cannot be restricted only to one category of retrenched wurkmen. Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is ustenable. It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and Wig as well as Ex. MB which constitute/relate to the circular instructions of the Responden /Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , & combined study of Ex . MI and the Averments ofMWII and MW2 and their testimonies during the cross-cxamination will clearly show how the bank has given a raw ideal to the Petitioner from the beginning linking his future with the settlements. Further, Clause I ofEx .MI deals with categorization of retrenched temporary employees lato'A, B and C' , but this categorization of 'A, B&C is quite opposed to the doctrine of " last come-first 10 or first como last go' and therefkat, the categorization inClause 1 is illegal . Clause 1 (a) of Ex . MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers, farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters, copy of which is marked as Ex. W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions , In such circumstances, the absorption of chounks slozig with the cligible categories is not valid. Thorefore, these persons who were engaged by the Respondent Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of atriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Purther, as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M 10 in this case.Those candidates onder Ex. M10 were found suitable for appointments messengers and sweepers . Even MW I is unable to say as to when the wait list Ex .M10 was prepared, but it is mentloned in Ex . M10 that it was prepared based

on the settlement dated 17-11-87, 27-10-88 and 9-1.91 which are marked as Ex . MI . M.3 and 14 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement datert 27-10-88 was not included in theMadras circle since the High Court order is there, but he has out produced any document in support of the so called P inclusion except his bald statement . Further , according to MWI wait list under Ex . M10 was prepared on 2-5-92but there is no pleading in the Counter Statement with regard to this wait list, kurther the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as art exhibit, in which it is stated that ' it is clear that the 1987 seulement was concerned with the temропагу class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 seulement dealt with daily wager in Class TV category who were paid wages daily on mutual agreement basis . In such circumstances, as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 serilement since they formed wo distinct and separate classes and they cannot treat one class and their action podoubtedly amounts to violation of Article 14 of Constitution of India Further, the averment ofMW ] and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as perdeposition of MWI wait lise underEx .M10 comparises of both messengerial and non-messengerial candidates While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals. Therefore, both belongs to two different and distinct categories .But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter ofabsorption .Therefore, it is viulative ofArticle 14 & 16 of Constitution of India . Therefore, the Petitioner contended that preparation of Ел . М 10 лаmely wait list is not inconformity with the instructions of Ex . M2 and доп- preparation of separate panels amounts to violation of circular . Secondly , it has not been prepared as рет instructions in Ex . W2 circulat regarding projected vacancies for the period from 1987 to 1994. Furthermore, do wait list was released/ published even after the Court onder in WMP No. 11932/91 in W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore, wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex . MIO has been prepared in violation of instructions and ceased to have the credibility attachedto the wait list . Above all, Ex . Ml was not produced at the time of conciliarion proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list 5085

भारत का राजपत्र अगस्त 4, 2007 / ण 13 , 1929

[ भालखण्ड 3(ii)]

bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses, the deposition of management witnesses during the cпове examination bad become apparent that they have no personal knowledge about the settlements which are marited asEx. Ml to M5. Above all, though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent/Bomik it was implemented only in the year 2001 and it constitutes post reference period and bence evidence ofRespondent /Bank has no application to the Petitioner's case. The Petitioners lave completed the scryice of240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial DisputesAct, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section25 andtherefore, they are deemed to be in continuous service ofthe RespondentBank and they are entitled to the benefits under the provisions of LD . Act. It is further contended on behalfofthe Petitioner that though some of the Petitioners in the connected L.Ds have not completed 240 days, since theRespondent/Bank has not taken into consideration und not included the Sundays and paid holidays as days can which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months. He also relied on the rulings reported in 1985 JI LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATIONwherein the Supreme Court has held that the expression 'actually worked under the employer ' cannot mean " that those days only when theworkmen worked with harumer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the comployer und for which hehad been paid wages either unciar express or implied contract of service or by compulsion of statute, standing orders etc. " It is further, argued that call letters produced by the Petitioner will clearly prove that the RespondentBank has conducted the interview and selected the temporary employees who have reported to bave submitted their application for absorption as per the bank's circolar and therefore, their retrenchiment is illegal. In all bese cases , the Petitiomas were in employment as anb staff in carly 1980s but wạc đtnied further engagement on account of seulements /lapsing of wait lists and out of these Petitions some of them have completed 240 days and more in a continuous period of 12 calendar monins and they are in age group of 40 to 50 years and for no fanlt oftheirs , they find themselves stranded in life midstream. They have also not gainfully employed . To such circumstances , this Tribunal has to pass an award in their favour.

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maimainable inview of the facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected disputes Ex. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petition that though the Responderit Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointinent was in leave vacancy. Further , even beforeor after the settlement on absorption of temporary employees, the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause2 (oo) of the LD. Act , 1947. Though the Petitioner's work in the Respondent /Bank is continuous and though the Petitioner has performed the duties continuouslywhich is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitionez relied on the nalings- reported in 1985 4SCC 201 FLD. SINGHVS. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ wontanen as badlies casuals or temporaries and to continue them as such for many years with the object ofdepriving them of the status and privileges of permanent workmen is illegal " Learued representative further contended that Ex .M10 wait list bạn not been prepared in accordance with principle of seniority in the legal sense, since the sekcted candidates with longest service should have priority over those who joined the service letter and therefore , the wait list under Ex. MI0 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2(e) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/future vacancy anywhere in module or circle and incase, a candidate fails to accept the offer of appointment or posting within the prescribed period, be will be deemed to have refused it and the name shall stand deleted from the respective panel and be shall have no further claim for being considered for permanent appointment in the bank. TheRespondent/Bank has not produced any documentto show how he has arrived at the seniority and till daur , it is a mystery as to who that senior was and there is no documentary evidence in support of the awerment and also for the averment ofMW1 . Therefore, the terminustion ofthe Petitioner who was in regular service of the Respondent/ Bank is ambitnry, mala fide and illegal and the Respondent/ Bank bas nol acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent /Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central) , Hyderabad, it is neither a 18( 3 ) settlement nor 12(3) settlement as claimed by the Respondeat/Blank which says onlywith regard to modification of Ex. MI to M4 made in tertus of Ex. Mó . Though the Respondent/Bank produced Ex. M7 and MII interim orders passed by High Court of Madras in WMP No.11932/91 in W.P. No.7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any 5086

THE GAZETTE OF INDIA: AUGUST 4, 2007 /SRAVANA 13. 1929 [ PART I- SEC. 3 ( ii) ]

further relied on the rulings reported in 1997 ILLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that "settlements are divided into swo categories namely ( i) those arrived σε outside the conciliation proceedings wider section fö8 ) of the L.D. Act and (4) those arrived at in the course of conciliation proceedings under section 18/3). A settlement of the first category has timized application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended applicarton as it will be binding on all workmen ofthe establishment. Even in case of the first category, if the seulement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the seulement, itmust be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL . ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by thefree will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature of that it has been arrived at on account offraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispure which an appropriate Govt. may refer for adjudication after examining the allegations as there isan underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable, " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it isbinding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the saume,

11. Learned counsel for the Respondeat further contended that though the reference made in this case and other connected disputes is 'whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?" The Petitioner contended that the retrenchroent made by the Respondeo /Bank is not valid and he has to be reinstated in service wich full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt. is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made us contendedby the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statemenr .

were not in continuous service. Hence , the question of regular appointment/absorption does not arise at all قصة their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn undet the provisions of Sections 18( 1 ) and 18(3 ) of the LD. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and claim of the Petitioners are not bona fide and are madewith ulterior motive . Furber, they have concealed the costerial facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the sectiority. The Reapondent/ Rankwas engaging temporary employees due to business exigency for the performance of duties as messenger. Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that hewurkedas temporary messenger is also incorect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wiit listed and therefore , thePetitioner is cstopped from questioning the settlemen directly or indirectly and his claim in liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD VS. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12 ( 3 ) the union entered into a settlement with the management settling the chaim of 11 vorkomen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of concillation is vitiated by fraud. misrepresentation or coercion, the settlement is binding on the worlosen. " Learned counsel for the Respondent further retied on the rulings reported in 1997 TE LL.J1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the DivisionBench of the Bombay High Court hau beld that "therefore a seniement arrived at in the course of the conciliation proceedings with a recognised majority anion will be binding on allworkmen of the establishment, even those who belong to the minority union which had objected to the same. To that edens, is departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the concillusion officer and to discourage an individual employee or a minority union from scunting the settlement." It further held that " there may be exceptional cases, where there may be allegations of mala fides,fraud orjeven corruption orather inducemerus.But, in the absence of such allegations, a settlement in the course ofcollective bargaining is entitled to due weight and consideration." Learned counsel for the Respondent

12. But, as against this un behalf of the Petitioner it is contended that here wording of reference is not decisive [ भाग- खण्ड ( ii ) ]

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भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13, 1929

between the Respondent/Bank and Federation and since it is not questioned by any ul' the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA LLOJEL AND SHOP WORKERS UNION 'S. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the material before it , it has only on dury and that is to decide : חנוts on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the rmachinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits ." Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinseated in service or not for which be relied on the rulings reported in 1998 LABIC 1664 VANSAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS, wherein theMadhya Pradesh High Court has beld that "the Tribunal cartnot go behind the terms of reference , but that does not mean that il cannot look into the pleadings ofparties . " He also refied On the rulings reported in 1998 LAB 1C 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not atredopt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . He also argued That in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to onnsider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framod to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenctument is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Rark and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as aileged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is catided to go into the question whether the relief prayed for by the Petitioner can be given to him or not ? But, Ifund that the settlement was validly enterert into

14. Then the learned counsel for the Respundenl contenkled that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and be relied on the rulings . reported in 1996 3 SCC 139 UNION OF INIXA AND OTHERSVS. K.V.VIIEESH wherein the Supreme Court has held that " the only question which falls for determination in this uppeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt, service in existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made in view ofthe impending absorption of steam surphas staff and a policy decision has been taken to reduce the atuiber of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that in such circumstances, denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its lecter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact thurt itwas aycarly panel expiring on 6-2-98 , we are of the opition that the Respondents did not get any right because of inclusion of their names in the said pamel for permanent absorption in the services of the benik. Whatever condizional right they had come to an end with the expiry of the panel . The claith of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the ralings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has hald that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions, learned counsel for the Respondent contended that since the Petitioner has no not to question the wait list and since there is no mata fide on the part of theRespondent Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further , be relied on the rulings reported in 1992 LAB IC 2168 STATE OF 3218C07-35 5088

THE GAZETTE OF INDIA : AUGUST 4 , 2007 / SRAVANA 13. 929

PART 1 ] $ . ; )

rmillity " Therefore , learned counsel for the Responder: conrended ruat these len porary employees were appointed only due to exigences and they have not appointed against any regular vacancy ana they have only appointed in leave vacancies and therefore , they are net entitled to claim any absorption in the Respondent/Batik. Futher,be relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORSVASTATE OF BIHAR ANTO ORS. wherein the Supreme Court has held that " they are temporary employee working on danly wages Underthese circumstances, their disengagement from service cannot be construed to be a reteachment under the 1.D. Act. The concept of retrenchment literefore , cannot be stretched tu such an extent as to enver these employees . Since they are only daily wage employees and have no right to the posts . their disengagement is et sibinary " He. further relied on the rulings reported in 1994 511.J Supp ) 75-1 wherein the Rajasthan High Court has led that " huder Section 1 the I.D. Act retrenchment procedure following principle of 'last come- first go is nor mandaraly hur only directory, от sufficient grounds shown , the employer is permitred depart from the said principle retrenching seniors and retaining juniors . Though in this case , the Petitioner hus alleged that his juniors have been made permanent 17 banking service, he has 101 established with any evidence that his juniors were made permanent by the Respondent Bank. Any how. if the Petitiorer has shown anything . the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Responder /Bank cannot be given to the Petitioner and , therefore , the claim is 10 be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC I SECRETARY, STATEO ] KARNATAKA VS. LMA DEVI , theSupremeCourt has held that merely because u temporary employee or a casual wage worker is continued for a time beyond the team of his appointment , be would not be entitled to be absorbed in regular service or made permanent merely on the strength of such cintinuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Courtto prevent regular recruitment at the instance of temporary employees whose period of employment bas come to an end or of ad -hoc employees who by the very nature of their appointment . do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either teamporary or casual in nature is not aware of his employment . He accepts the carployment with open eyes . It may be true that he is not in a position to bargain roatams length since he might havebeen searching for some employment su as toeke out his livelihood and accepts whatever he gets . But on that ground alone. it would not be appropriate tu jellison the constitutaonal scheme of appoinment, perpetuate illegalitics and to take the view that a person who has temporarily or casually got employed shou'd be directed to he continued HARYANA AND ORS . Vs. FLARASINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad -hoc temporary employees who have continued for more than a year should he regularised, we find it difficult to sustain it . The direccion has been given without reference to the existence of a vacancy.The direction in effect means that every ad -houw emporary proployee who has been continued for one year should be regularised even though ( a) nọ vacancy is available for him which means creation of a vacancy: (b) he was not sponsoredby Employment Exchange norwas he appointed in pursuance of a notification calling for applications which means be had entered by a hack door: (c) he was tot eligible and qualified for the post at the time of his appointment ; ( d ) bis record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuaticts of an ad- hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one cases a direction was given to regularise employees whohave put in one year's service as far as possible und subject to fulfilling the qualifications , it camotbe held that in each and every case, such a direction must follow imespective of and without taking into account the other relevant circumstances and considerations. The relief must bemoulded in each case having regard to all the relevant facts and pircumstances of that case . It cannot be a mechanicall act but ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders of lower Courts .He further relied on the decision reporte 1997 SCC I ASHWANT KUMAR AND OTHERS VS. STATE OF BIHARAND OTHERSwherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , ifthe candidate concerned is appointed in an irregular mammer or ou ad -hoc basis against an available vacancywhich is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a jon-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility . In would amount to decorating a still born baby . Under these circumstances, there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees, therefore, remained a 5089

भारत का राजपत्र अगस्त 4, 2007 / আমল 13 , 1929

[भाग-खण्ड (is) ]

the preparation ofwait list or number allotted to them . Unka such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the kamed counsel the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the RespondentBank and Federation , at the lime of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list Further, thePetitioners have not questioned the settlement and sey have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even coruption ur other inducements. Under such circumstances , 1 find the Petitioners cannot now question the settlements al this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temрогну employees to be absorbed , I find the Petitioners cammol laim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further, the representative for the Petitioner commended that in a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence, the Petitioners are cotitled forthe same relief.

19.But, I find since the Supreme Court has held that temporary employees are not intitled to claim any rights for regularisation , merely because they have completed 240days of continuous service in a period of 12 calendar months and the Supreme Court bas also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and coutsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent Bank as alleged by him. Therefore, I find this point against the Petitioner.

permanently . By doing so , it will be creating another mode of public appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee........It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he wond not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a duc pmoess ofselection as envisaged by relevant rules .Further, in CDJ2006 SC 443 NATIONAL FEKILIZERS LTD. AND OTHERS V1 SOMVIR SINGH, wherein the Supreme Court basheld that "regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employce upon the expiry of purported periodofprobation would not arise." Further, in CDJ 2006 SC 395 MUNICIPAL COUNCIL. , SUJANPUR V1 . SURINDER KUMAR, the Supreme Court has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its comployees was bound to follow the recruitment rules . Any recruitmeal made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 of the Constitusion of India would bevoid in law. " Further, in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The SupremeCourt also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident , in view of the settled legal position, as noticed hereinbefore. "

Point No. 2:

The pext point to be decided in this case is to what relief the Petitioner is entitled?

20. To view of my foregoing fundings that the Petitioner is a temporary employee and be is out entitled to be absorbed in regular service or made permanent merely on the strength of such continpance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs.

21. Thus , the reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by bim , corrected and pronounced by me in the open court on this day the 31st Janмагу , 2007) .

K. JAYARAMAN, Presiding Officer 16.Relying on all these decisions , learned counsel for the Respondent contended that since the Petition has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Peticioner is not entitled to claim regularisation of his service. Further , when they have not been questioned the five settlemeals catered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointmeal thereon as temporary messenger as per wait list . Under sanch circumstances , after expiry of the period rmentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either 5090

THE GAZETTE OF INDIA : AUGUST4 , 2007 / SRAVANA 13, 1929

Witnesses Examined:-

For the Petitioner WWI Sri P. Selvaro WW2Sri V.S. Ekambaram For the Respondear MWI Sri C. Mariappan MW2 Sri C. Ramalingr

Documents red

Ex.No.

Description

1-5-58 Xerox copy of the paper publication in dail: Thanthi hased on Ex . Mi W2 20-4- Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx M1 .

Xerox , copy of the circular of Respondent Bank to all Branches regarding absorption of daily wagers in Mousenger vacancies .

Wa 1551 Xoros copy of the soverisement Hindu on daily wages hasee on Ex. 44.

[PART II -SEC. 3( 1) ] ₩16 6-3-57 Xerox copy of the call Ictter from Madurai Ponal office fur 1nterview of messenger post- F. Velinшикап .

W17 17-3-97 Xerex copy of the service particulars J. Velmuragan .

26 1.97

1418

Xerox copy of the ietter advising selectior.cl part time Menial G. Pandi .

W19 3139 Xerex copy of the appointment order to Sri G. Pandi

W20 Feb.2005 Xerox enpy of the pay slip of I Sekar for the month of February , 2005 wait list Nu 395 st Madurai Circle .

21 13-02-95 Xerox copy of the Madurai Module Ciscular letter ahwat Jigging empосагу cimploy ces faarn the panel of wall list

₩ 22 09-11-92

1 Xerex topy of the Head Office circular No. 2 regarding Norms for sanction of messenger searй .

W25 0941.92

WS 20 Xerox copy ofthe advertisement inTe Hindu extending Pernod of qualifying service to daily wagers.

15-37 Xe cupy of the circular letter ofZnal Office , Chennai about filling up of vacancies of inessenger posts. 25-3-5 Хегоs copy of the circular of Respondent /Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97 .

百

Xeinx copy of the instruction in Reference book on staff about casuals not in be engaged at office/branches to domessengerzal work.

6-5-80 Xerex copy of the service certificate issued by Kalpakkam branch.

W10 22-3-96 Xerox copy of the service certificate issued by thousand Lights branch .

Kerax copy of the service certificate issued by Ashok Nagar branch.

12 N

Xerox copy of the minutes of theBipartite mecting

W24 09-07-92 Xerox topy of the settlementbetween Resporulent/ Bank and All India Staff Rank of India Staff Federation for implementationoff norms creation ofpart time general artetdonts .

W25 07-02-06 Xerox copy of the anal Head Office circular abuan Conversion of part time employees and redesignate them as genera: anendarıls

W26 31-12-85 Xerex copy of the kaal Head Office circula: ahout Appointment of empacy employees in subordinate For theRespizunagerment.:-

Ex. No. Date

Description

Mi 17-[ ]- Nex copy of the settlement.

M 16-07- ёл Хегоx copy of the settlement .

27-19-58 : x copy of the settlement .

Aerox copy of the settlement .

M5 4750 Xerox copy of the serileshent

Mr 0906-55 Marax copy of the minutes of conciliatio hoceedings

M7 28-(5

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/ Baok regarding recruitment to subordinate care and service conditions .

детох сару of the order in W.P.

18 1505

Xex topy of the Reference book ол Staff natters Vol. II consolidated upto 31 12/95

6-3-97

W14

Xer copy of the call lester from. Madura zonal office for interview of messenger post- v. Muralikunnan .

W15 6-3-97

210x cope of the der j ) P. No. 787/97 of High Court of Orissa .

بارد

Хетих copy of the order of Supreme Couד in SLP No 308399.

4 :0 N

Xerox copy of the wait last of Chenoai Module

Mil 25-10-99

Xerox copy of the calt letter from Madurai sal office For interview of Micssenger post-K. Subbura;.

Xerex copy of the ander passed in : CMP No. 16259 and 162999 in W.A. No.

[ भाग 11-खण्ड 3 (ii) ]

नई दिल्ली , 19 जुलाई, 2007

कल, आ. 2202-औधोगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार, स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरण , चेचई के पंचाट ( संदर्भ संख्या 221/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्ता हुआ था ।

[सं. एल-12012/345/98 -आईआर ( बी -1 ) ] अजय कुमार, संस्क अधिकारी NewDelhi , the 19th July.2007

S.O. 2202. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) . the Central Government hereby publishes the award (Ref. No. 221 / 20014) of the Central Government, Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure in the Industrial Dispute between the management of State Bank of india and their workmen, received by the Central Government cu 19-7-2007 .

No. L-12012/345/98 - IR (B -T)] AJAY KUMAR , Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, (HENNAI

Wednesday,the 31st January , 2007

PRESENT:

Shri K. JAYARAMAN, Presiding Officer Industrial DisputeNo. 221/2004

[Principal Labour Court CGID No. 59/99] (In the matter of the dispute for adjudication under clause(d) of sub - section ( 1 ) and sub- section 2(A) of Section 100 of the fndustrial Disputes Act , 1947 ( 14 of 1947 ) , between the Management of State Bank of India and their workmen)

HETWEEN

Sri A. Sckar

5091

भारत का राजपत्र अगस्त 4, 2007 / श्रवण 13 , 1929

referred this dispute earlier to the Tamil Nadu Principal Labour Court, Cheamai and the said Labour Court has taken the dispute con its fide as Coll) No. 59/99 and issned notices to both parties. Both sides entered appearance and filed their Clain Statement and Counter Statement respectively. After the constitution of this CGIT-cum- Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No.221/2004.

2. The Schedule mentioned in that order is as follows:

"Whether the demand of the workmao Shri A. Sekar , wait list No. 392 for restoring the wail list of temporary messengers in the establishment of State Rank of India and consequential appointment thereupon as temporary messenger is justified? If so, to what relief the said workinan is entiled ? " 3. The allegations of the Petitioner in the Clain Statement are briefly as follows:

: Party/Petitioner

AND

Party/Managerment

TheAssistentGeneral Manager, : StateBank of India, 2. O. Chermai

APPEARANCE

For the Peritioner

: Sri V. S. Ekambaram,

Authorised Representative

For the Management : M/ s. K. S. Sundar , Advocates

AWARD

1. The Central Govemment Ministry of Labour, vide Order No. L- 12012/345/ 98- IR (B- I ) dated 03-02-1999 has The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on teamporary basis at Siruthozhil branch from 10-06-1981 . The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject maller before Supreme Court in the form of Writ Petition filed by State Bank Employees Uning in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent Hank , in addition to its caminter , filed a copy of settlement under Section 18 ( 1 ) reached between management ofState Bank of India and All India State Bank of India Staff liederation and the settlement is with regard to absorption of Class TV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classifiod the workmet under three categories namely A, B and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Peritionen about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Siruthozbal branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and ulso with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. From 10-6-1981 , the Peritioner has been working as a temporary messenger and sume time performing work in otherbranches also . While working on temporary basis in Anna Nagar West hranch, another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner nrally on 313-97 that his services are not required PAKI -SEC 5092

THE GAZETTE OF INDIA : AUGUST4, 2007 /SRAVANA 13 , 1929

any more and he need not attend the office from 1-4-97.Hence , the Petitioner raised a dispute with regard to his employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudicarion. Though refference was sent to this Tribunal . the reference framed did not satisfy the grievance of the Petitionen he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as blaaned prior to 31-3-97 and to regularise him in servicein due course. The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of consequence . since acending to the RespondentBank . it engaged the Petitioner only in temporary services after the senlemeni . The Petitioner was not aware of settlernent by which his services and number of days worked by him after interview do nar merit consideration . The Peritinn was not a party to the settlement mentioned by the Respondent/Bank before the conciliating officer . Therefore . the Respondem's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Section 25G & 25H of the I.D. Act . The terminacion of the Petitioner is against the provisions of Para 52204 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank bus been Regularising according to their whims and fancies . The Resporxlint/Bank has also not observed the instructions regarding grant of increments . leave, medical benefits etc. 10 the temporary workmen which amounts to violation ol relevant provisions of circuler . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by bath which amounts in unfair labour practice. The wait list suffers serious infirmities and it is not hased on strier seniority and without any rationale . Hence, for all these reasons the Petisinner prays to grant retief of regular employment in Respondent/Bank with all alendant benelits

employces who are cluismag permanent absorption anıl when the in Last was espeased by Stare Bank of India Stati Federation which resulted in five settlements dated 17-11-87-16-07-88,07-10-88.9-2-91 30.7 96. The said seatlements became subject matter of conciliarian proceedings and minnes were drawn under section 13 :3 ) of J.D. Act . In tefms thereof , the Petitioner wils insidereal for permanent appointment as per his eligibiliry along with similarly placed olines lemporary employees and the Petitioner was wait listed as candidate No.392 in wait isl ofZooul Ofiice . Cheran Solar 357 wait listed lernthirary candidates , our of 744 wait sted temporary employces were permanently appoirred by Respondent Bank. is false to allege that the Periconer worked as a temporary messenger . The Pentine sagaged only in leave vacancies as and whee it arose . When the Petitioner having submitted to selection process in reims of settlements drawn as per retreachment provisions referred to above, cannot turn areas and aim appointment Such of linove temporary employees who were appointed were engaged for more number aday's and hence , they were appointed . Under the settlement. empiayces were categorised asA. B and C. Considering their temporary service and subject to other eligibility criteria . under category (A) the temporary employees who were engaged for 2-4f days were to be considered and under category ( B ) the temporary employees who have completed 270 days aggregille temporary service ir . any enatinuous block of 36 calendar months and under category Ci the temporary employees who have completed 30 days aggregate temporary service in any calendar year alter :-7-75713 aggregare temporary service in any continuous block of 36 Calendar months were to be considered . As per clause the length oftemporary sarvine was in he considered for seniority in the wait list and it was also agreed that wait list was to lapse in December . 1991 and the cut off date was extended 139: for filling up vacancies which were to arise upto 31-12-91 . The Petitioner has no valid and enforceable righ : fer appointmem . The Respondent had implemented the voluntary retirement scheme and even the permaneat vacancies stand substantially reduced. There were no regular vacancies available. The peculiu problem was due to the lacks that all the aforesand temporary enipkiyees were winking in gave vacancies and acı in regular permancar vacancies . In terms of aforesaid settlements.out of 744 wait listed candidates . 357 temporary employees were appointed and since the Petitioner was wail listed at 392 he was not appointed The said seltbernemis were bama Side which was the only workable solution and is binding on the Prisoner . The Petitioner is estuppeil from questioning the set.jerments directly or indirectly and his claim is liable to be rejected . Further , the sand sellements were nul questioned by any prin star and the settlemerms of bank leve settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment el Permanent Status to Workment A1 , 1981 does nut apply to Respondent Bank arıd this Tribunal has no jurisdiction to entertain such plea. It is not correctto

say thatdocuments and identity of Petitioner was verified 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable. The Pelilioner was not in continuous service . Hence, the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitionel is estopped from making claim as per Claim Statement . The settlement drawo under provisions of Section 181 ) and 18 ( 3 ) of 1.D. Act in lieu of provisions o law.renrenctunent and implemented by Respondent/Bank. The claing of the Petitioner is out bona fide and made with serior motive . The Petitioner concealed the material facts That he wis wait listed as per his length of engagement and could not be absorbed as he was positioned down i scnincity , Due in the business exigency , the Respondent Bank enguged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 unwards . Such of those 5093 [ भाग -खण्ड |

भारत का गजपन्न अगस्त 4 , 2007 श्रवण 13 , 1929

(ii) "To what relief the Petitioner is entitled? "

Point No. 1:-

before the Petitioner was engaged . It is also set porrectto suy that the Petitioner was discharging the work of pernianeat messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 bas to be filled up against the wait list drawn for appointment of daily wages/ casoul Labour . Further, for circle of Chennai wait list of dailywages was not froalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence, for all these reasons, the Respondent prays to dismiss the claim with

8. In this case , on behalf of the Petitioner it is contended that the Petitioner to this case and the Petitioners inthe connected industrial disputes have been sponsored hy Employment Exchange and they having been called for interview and having been selected and wait listed in terens ofthe relevant guidelines / circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years, the Petitioner in this case and other Petitioners in the coumected disputes were terminated without any notice. Since theRespondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the manner was pending in Weit Petition No. 542 (Civil) 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the SupremeCourt at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 hefore the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant beocfits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored hy employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candiclate fur appointment in the post of messenger and other class TV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the RespondentBank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus, the RespondenuBank imposed total ban for his future cmployment. Even though there were sufficient mumber of vacancies in class TV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait Listed workmed with ulterior motive. The Responden/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whiros and fancies.Hence, the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filled a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the serdermcats made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18( 3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class TV staff in the RespondentBank is in accordance with the instructions laid down under codified circulars of the RespondentBank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is false to allegethat the settlements are contrary to the rights ofthe Petitioner, Hence , the Petitioner prays that an award may be passed in his favour.

7. In these circumstances , the points for my consideration are:-

(3) "Whether the demund of the Petitioner in Wait List No. 392 for restoring the wait list of temporary messengers in the Respondeat Bank and consequential appointment thereupon es temporary messenger is justified?"

9. On behalf of the Petitioner, it is contended that these Petitioners were recruiled as temporary employees in theRespondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines curry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in arry case, the Petitioner is not bound by settlement under Section 18 ( 1 ) cutered into between the alleged Federation andthe Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore, they have no valid and enforceable right for appointment, in the wake of strid instructivos and circulars / guidelines issued by the Respondent/Bank to the effect that temporary employees al branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further, they have invoked the relevant provisions of Chapter V A of the 1.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment us Section 250 and 25H are very much applicable to the Petitioners who are retrenched messengers 5094

THE GAZETTE OF INTRA : AUGUST 4. 2007 / SRAVANA 15. 1924

MW wall list under Ex.M1: was prepared an 2-5-92hur there is on pleading in the Counter Statement with regard 10 this wait list . Further the Haa'ble High Court has leadin its orderdated in W.F.Ne.7872 of 1991. which is marked as an exict it is stated that ' it is clear that the : 987 secment was amuered with the tempurun class [V employees who were paid scale wages a per Bipartite Settlement whole the 1988 settlemem dealt with daily wager in Class IV category who were paid wages daily on musual agreement hasis such circumstances . as rightly contended the Respondent are o justified and combined the list of canitidates covered under 1987 settlement and 1988 senlernent since they formed twu disonct and separate classes and they cannut treat one class and their action undoubtedly amounts to violarion u Anicle 14 of : India . Further , the averment of MWi and the statements in Counter Statement aгс contrary to the above and is nothing but a desperate intempt to wriggle out the illegality crenmited or perpetrated by the Respendent Bank by sumbing equals with unequeis . It is further contended on behalf of the Petitioner that is per deposition Di MWI want list under Fx.M10 comparзве of both messengerial and non - messengerial candidates . While the temporary exployees were appointed after due process of selection and were paid wages on the basis industrywise settieren .its not so in the case of casuals. Therefore, bull belongs to two different and distine: categories . But Ex . M. provides find the same TTS to the casuals its in the case of temporary employees in the mater of absorption . Therefore , it is violative of Article 14 and ofConsiunione Ind Theretore , the Petitioner contendon that preparotior of Ex . M10 namely wait list is not acniformity with the anstrations of Ex . M2 and nor. preparation of separaic pane's amounts to violation of circular . Secondly, ir has not been prepared as per insstuctions in Ex . W2 circular regarding projected vacancies for the end 1987 to 1994. Furthermore . De wait list was released / published even after the Courr order in WMP No.11922/ 91 in W.P. No.7872/91 direcring the Responden/ Bank release the list of successful candidates pursuant to the fin advertisement putilishext inThe Hindu dated 1-8-89. Turthermore , wait list underEx . M10 does not carby partocalars about the candidares daze of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear thut Ex . M : Uhas been prepared in vialarion. of instructions and ceased to have the credibility attached To the wait list. Above all , Ex . Ml was not produced at the time of conciliati eerlings held during the year 1997. 98 held at Chenna : and Macuras and only during the year 2003 the Respondent Ban's produced the wait list Ex .M10 before this Tribunal marking at as a confidential document . It is further crmieniled in behalf of the Petitioner th though the Respondent Bank has alleged that these peririoners were engaged in leave vacancy , they have nu : been told ar the rime of initia . appointment that their sppointment was in leave vacancy . l'urther , even belore or after the serienment on absorption of temporary employees. the expression Us : Lhey were engaged in leave vacancy and are aligible to be reinstated . Learned representative for thePetttipner contendied that in 1996 [ .AB & IC: 2248 Central Bank of India Vs. 5. Satyam und Others the Supreme has held that Chapter V - A of the ID . Act providing for Tetrenchtment is not enacted only for the benefit of the worknzee ka whom Section 25F applies but for ali cases of retrenchprom . Therefore , the application of Section 25H cannor be restricted only to one category of retrenched workne . Therefore, the onntention of the Respondenti Bank that the Petationer has no valid and enforceable nghi For appointment is untenable . It as further contended that on behalf of the Petitioner that Ex.W2 . W3 and W & as well as Ex . MB which constituterrelate on the circular instructions of the RespondentBank issued from time to time in connection with the implementation of the settlemesis on ahsurption and which are statutory in character . Further.a onmhived study of Ex.Ml and the averments of Mwi and MW2 and their Lestimonies during the cross examination will cleatiy show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause of Ex . Mt deals with categorțation of remenched lemporary employees into 'A, B and C1 , but this categorization of ' A, B and C is quine opposedit the doctrine of ' last come first go' ur first come-last go and therefore , the categorization in Clause 1 isillegal. Clause I ( a) of Ex.M1 provides an opportunity to persuijs who were engaged on casual basis and allowed towork in leave/ casual vacancies of messengers , farashes . cash coolies, water boys , sweepers etc. fur absorption along with the other eligible categories of temporary employees is not valid . Further . engaging casuals to du messengerial work is in contravention of the guidelines mentioned in ReferendeBook on Staff matters , copy of which is marked as Ex .W $ . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances . the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged hy the Respondent/Bank on casual basis should not be given petmaner appointment in the bank service . Those cusuals were given more beneficial treatment in the matter of aniving al qualitting service for interview and selection . But, temporaty employees have not been informed about this amendment which includes casuals affecting their interest and chance.Further , as per instructions in Ex .W2 four types ofwaiting lists have to be prepared. But the Respondent ' Bank har alleged to have prepared only one wait list for each module as per Ex. M 10 in this case . Those candidates under Ex.M: 0 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex . M 10 was prepared, but it is mentevned in F.x. M 110 that it was prepared based on the settlement dated 17-11-87. 27-10-88 and 9-1-91 which are marked as Fix . Mil , M3 and M4 respectively. But, when MWI bas spoken about the settlements . he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusionexcept his bald staternent . Further , according to 5095 भारत का राजपत्र अगस्त 4 , 2007 / श्राषण 13 , 1929

भाग 11--खण्ड 3 ( ii) ]

ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial DisputesAct, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continnous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of 1.D. Act. It is further contended on behalfof the Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240 days, since theRespondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in period of 12 calendar months . He also relied on the rulings reported in 1985 IT LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKINGCORPORATION wherein the Supreme Court has beld that the expression 'actually worked under the employer ' cannot mean that those days onlywhen the workmen worked with hunarmer, sickle or pen but must Decessarily comprehend all those days during which theywere in the employment of the employer and for whichbe had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary comployees who have reported to have submitted their application for absorption as per the bankk's circular and therefore , their retrenchiment is illegal. In all these cases, the Petitioners were in employment as sub-staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lists and out of these Petitionces some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fanlt of theirs, they find theinselves stranded in life midstream. They have also not gainfully employed . To such circumstances , this Tribunal has to pass an award in their favom.

10. But, as against this, the learned senior counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view of the facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence, the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had sccepted the settlements drawn under the provisions of Section 18( 1 ) and 18 (3 ) of the LD . Act, in liep of the provisions of law and implemented by the Respondent Bank and the claim of the Petitioners are not bonafide and are made with ulterior tmotive . Further, they lurve concealed the material facts that ise Petitioner was wait listed as per length of his engagement and could not be absorbed as he was used as a device to take them out of the principal clause 2 100) of the LD , Act, 1947. Though the Petitioner's work in the Respondent/Bank is continous and though thePetitioner has performed the duties continuouslywhich is still in existence , the categorisation as such is not valid and the provisions of Sasary Award are also violated. Further, the representative of the Petitioner relied on the rulingsreported in 1985 4 SCC 201 HD . SINGHWS . RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that to employ workmen as " badlies cants or temporaries and to continue them as socks for many years with the object ofdepriving them of the status andprivileges ofpermanent workmen is illegal " Leamed representative further contended that Ex . MIU wait last has Tot been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service letter and therefore , the wait list under Lia . M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it. Though clanse 2(e ) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appoinument against existing/ future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointmeal or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . TheRespondeni Bank has not produced any documeal to show how he has arrived at the seniority and till daue,it is a mystery as to who that senior was and there is no documentary evidence in support of the avernent and also for be averne ofMWI . Therefore, the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent Bank has not acted in accordance with the terms of settement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6.15 before Regional Labour Commissioner ( Central ), Ilyderabad, it is meither a 18 (3 ) sendement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . M10 M4 roade in terms of Ex . M6 . Though the Respondent/Bank produced Ex .M7 and M11 interim orders passed by High Court of Mard - as in WMP No. 11932/91 in W.P. No.7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management wimesses caring the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ix. Mt to MS . Above all , though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent/Bank it was impleroented only in the yeaг 2001 and it constitutes post reference period and hence evidence

218-207--35 5096

THE GAZETTE OF INDIA : AUGUST 4 , 2007 / SRAVANA 13.929

[ PART [ J- SEC . Змії

the velliemeni narrated walita representada بر which the contesting workmere nere members and ifthere was roching urire unfair in the revans of the sentement, it murs de binding in the contesting kerinten also. He further red na the mlings repented in AIR 2005C469 NATIONAL ENGINEERING INDUSTRIES LTD. VS. STATE OF RAJASTHAN AND OTHERS winercin the Supreme Court has held that " sentiement is arrived as by the free was offia parte and a pontert ther being good wy! between there. When there is a dispute that the settlement is cookide karurer that it har been arrived at or pezowit of fraad misrepresentation or concealment of fatorer corruption and other Inducements it could be subject marrer of ver worker industrial dispute which an aspropriate Govt may refer For adjadi ako offer carinong the collegeaners arethere anderlying the seitler ποστά voth the hein of the coreigner officer must be fir гамолавле Rebing on all these decisurs caured counse: fer the Respondent cormended that though it is aileged that they are rst parties to the settlement . since the federation in whichthe Pasticerisame arongkien . they have entered to serlemerr with the bank sad therefore,itis bindinge the Petitioner . Further . he argued that no union of the ivank has questioned the sealement sad ia such carnul be and that it is binding on them and seaped from disewing the

11. Learnedene . I the Respondent or contended that though therefe ence made in this case ani other connected disputes is whether the demar el the workman via restoring the wait list of remporary messages the establishment of Respondent Bank and consequentia: appointment Thereupon as tenger is just fee The Petitiones conrered the the reachment made by the RespanicnuBarkind he has to be reinstated inservice with cheethe Petitioner's contention against the reference made by the Gevt . is no : valid Jurther in this case. Ite Cour, has to see whether The restoгaтіст: war hat can be made as comended b the Petitioner and netestatemcor as alleged by the Pelitimer in the Clanm. Stem 。

was positioned down in the seniority. The Respondeam Bankwasongaging temporary employees due to business exigency for the performance of duties as messenger. Further, the allegation that he was spunsured by Employment Exchange is incorrect and the allegation that heworked as temporary messenger is also meorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank anul the federatzun were: tantidewhich were the only workable solution and is binding on the Petirioner. The Petitioner accepted the settlement and accordingly he was wait listed and thereture. the Petitioner is estopped from questioning the serleme directly of indirectly and his claim is liable to be rejected. J'urthermore , the said settlemears were net questioned by any umorn and the settlements were hank level senlernen Is and operadle throughout the country . Further, he reliad en the rulingen: justeal ] 323 ASSOCIATED GLASS INDUSTRIES LTD. VS. INDUSTRIAL TRIBUNΑΙ . Α.Ι. AND OTHERS wherein under Section 1213 ) the unior entered into a senlernent with the management setting the claim of workmen and ise wurkmen resigned trom, the job and Leved terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign. voluntarih . But the Andhra Pradesh Elligh Court has heki That " in the absence of plea that the sentement reached in the course of conciliation is viziared by fraud. misrepresenzacion or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent furlier rebed on the rulings reported in 1997 11111 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS where Division Bench of the Bombay High Court has held that "therefore a sessiemen! arrived at in the course of the ennciliatfon proceedings with a recognised majorite union will be birding on all workmen ofthe establishmелг men those who belong to the minority union which inad robjected to the same. To thas exsert, it departs from the ordinary jan ofuxirants the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discowage an individual emplovce or a minority union from scunting the settlement. " It further held that " there may be exceptional cases, where there may be allegations ofmala fides,frond or even corruption or other inducemσης , Βατ, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration ." Learned counsel for the Respondent further selfed on the rulings reported in 1997 ILLJ 308 К.С.Р. LTD . V: PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely fit those arrived at parsipe the conciliation proceedings under Section 1811 ) of the 1.D. Acsland ( ii) those arrived at in the course of conciliation proceedings under Section 1813 ) A settlement of the first category has limited application and binds merely partcex to it and settlement of the second category made with a recognised majority uniwn has extended application as it will be binding on all u ankmer ofthe blishmens. Even in case of the first cursory of

12. Bot, as agairis this er behalf of the Petitioner is lended that mese wording ci relerence is not decisive in the marter of icna farference and be relied on the rulings reparted in 1908 [ AB 15 345 SECRETARY . KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL. KOLLAM whereit. 나 KeralaHigh Crusha " here waraliny referenes is not decisive in the matter of tenubility of a reference . Even though the Tribunal cant gu beyure the order of reference , if points cliferece are shscernible fru לוווי material before ituras el 01 duty and thares on dzeića The points on mecis and not to find out some technical defects in the weing of rienence, subjecting the poor workmar to Parcshop med a moving the machiner again . " It further : Trial should look inte भाग 11--- खण्ड (ii)]

5097 *११२० का राजपत्र अगस्त 4, 2007 / श्रावण 13 , 1929

the pleading and find out the exact nature of pleading of The Petitioner to fund out the exact nature of dispute instead of refusing 10 answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitions is to be reinstalled in service er nor for whicla he relied on the rulings reported in 1998 1.ABIC 1664 VAN SAGNATHAN ORIENT PAPERMIJS INDUSTRIAL . TRIRI NAL & ORS . whereinthe Madhya Pradesh High Court has held that " The Tribunal cannot go tehind the terms of reference , bul that does not mean that kanetlook into the pleadings of parties." He also relied endings reported in 1998 LAR IC 1507 A.SAMHANTFIAN VY PRESIDING OFFICER, LABOUR COURT MADRAS , wherein it has been held that " il bus beer. repeatedly held that the Labour Court shคน ไป แบ anemp: to consider the: ouler under reference in a tochnical manner or a perdantic: mmmmner, but should consider the order reference in Fair and reasonable manner . He also argued that in Express Newspapers P. Ltd. case reported in AJR 1993 50 569 the Supreme Court has held that " the Tribunal Fis jur sdiction to consider all incidental matters also and rte ander of reference should not be construed in the wanwer whch would prolong the inclustrial adjudication . The1.shot Curt is expected to decide the rea nature of d.spores herween the parties and with thar objent in view, " should consider the nader of relerence in a fair and casonable manner , though the order of reference is not appily tramed nor was it framed to the high expectation of The Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference. it is not mentioned that whether the setrenchineni is valid de not, from the pleadings it is clear that the Petirinners have been retrenched from the Respondent Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitic ner is entitled to be reinstated in service as alleged by hirn and whether he is entitled to the back wages as allegedbyhim . Therefore, the argument advanced on the vole of the Respondent that it is beyond the scope of reference is without any substance.

13. I find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribuned is entitled to go into the question whether che relics prayed for by the Petitioner can be given to him ur not? Bur . I find that the settlement was validly enrered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Ratnk, I find the Petitioner is not entitled to question the settleme

4. Then the learned counsel for the Respondent ornrenced that since the Petitioner mentioned that be has been kept in the wait tist and the time ofwait list has been exhausted , now the Petitinner cannot question that be should be reinstated in service and he relied on the rulings . resonal in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VUEES1I wherein the Supreme Court has held that the only question which falls for determination in this appeal is whether candidate whose name appears.

in the select list on the basis of competitive examination acquires a right of appointment in Govt service io an existing or a future vacancy. " In that case, pruning of select list un reduction in number of vacancies was made in view of the inspelling absorption of stearo surplus stall and a policy decision has been taken to reduce the oumber of vacancies and consequently , a certain mumber ofbottom persons were removed from the select list und the remaining selectees were given appointinents according to their comparativemerits In whach , the Supreme Court has beld that in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 19976 SCC 584 SYNDICATE BANK & ORS VS. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that "by its letter dated 7-2-17 the bank informed the Respondents that the panel was valid for one ycar only and that inclusion of thien carnes in the panel was nut to Lunfer on them any right to secik permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on fi - 1-98 , we are of the opinionthat theRespondents click not get any right because of inclusion ul their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had cometo an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was rhus, misconceived and therefore, the leamed Single Jodge and the Division Bench , when it first decided tlae appeal were right in dismissing the Writ Petition and the appeal respectively ." He further relied in the rulings reported in 1991 3 SCC 47 SILANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions . learned cosmsel for the Respondeat contended that since the Tetitioner has no right to question the wait list and since there is no mala fide on the part of theRespondent/ Bank in preparing the wait list, it ca נונ be said that preparation of wain dist was made with mala ficle motive. Under such circumstances , after the expiry of the dale namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannon pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 1.AB IC 2168 STATE OF HARYANA AND ORS .VS. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now comingto the direction that all those ad hoc temporary employees who have continued for more than a year shouldbe regularised , we find it difficult to sustain it . The direction bas been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year should be regularised even though ( a ) no vacancy is available for him which means creation of a vacancy ; (b ) he was not sponsored by Limployment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door (c) he was not eligible and qualitied for the post at the time 5098

PARTE SI S THE GAZETTE OF INDIA : AUGUST 4 , 2007/ SRAVANA 13. 1429

their disengagement is rot arbitrary ." He further reliedin the rulings reported in 199131LJ ( Supp ) 754 wherein the Rajasthan High Court has held that "Wider Section 15Gof the 1.0 . Act retrenchment procedure following principle of 'last come- first go ' is not mandatory but only threcluy safficient grounds shown, the enmpinyer is permited depart from the said principle retrenching seriors and retaining juniors. Though in this case. the Petitioner has alleged that his cummers have been male permanent in banking service. he has not established with any evidence that hisjuniors were made porrmanent by the Respondent' Bank. Any how . If the Petitioner has shown anything . the Responcken Bunk is realybluish the fact before this Tribunal that he has worked muse days than the Peiihurier In such circumstances .the pray for reinstatement in the services of Respondent Bank camaut he given to the Petitioner and . Therefore , the the discussed war. costs .

15. Learness Senin Advale further argued thar even în recentdecision reported in 20064 SCC SECRETARY. STATE OF KARNATAKAVS UMA DEVI , the Suprenie Court has held that merely because a temporary employee or a casual wage worker is cominued for a time beyond the terro of his appointment , he would not be entitled to be absorbed in reguiar service or caule permanent anerely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is apt กpen 10 the Court in prevent regular recruitment at the instance of temporary employees whose penud of employment has come to an end or of ad-hoc employees whoby the very nature of their appointment , du ot acquire any rig . " Farmer , it has alw held that "it is not as if the person who is tint engagement el orgenporary for casual in nature ef his steploymear . He accepes the cainloyment may be true that he is not in a pesirion to barms length since he might have hot scaren 1 : some employment so as to eke out bis velihood be whatever he gets . But on that ground onc . it be appropriate to jetti שהתצ CORSTUCTA mppointment , perpetuate illegalities and to take vivevica sharperson who has temporarily or rasusily got employed should be directed to be continued permanently By dma ... it will be creating another mode of pubic appoiourer which is not permissible . " l'urther , The Supreme wil laying down the law . has clearly heldthat unicas lupantment is in terms of the relevant rules and ester a paper competition amung qualified persons, the we would not confer any right on the candied thar merely because a casual wage workers continued For a time beyond unc term of his appointment , he would nos de extirici tre absorbed in regular service or made permanentere'y T. the strength of such continuance . ir the orignal gay intent was not made by following a dve processof selectias envisaged by relevant rules . Purther . in CDJ 2006 SC. 443 NATIONAL FERTILIZERS LTD.AND OTHERS VS. SOMUIR SINGH. wherein the Supreme Court hipment; (d ) his record of service since his appoisanentes not satisfactory . These are the additional portcans ipabeated by tus in para 12 which would arise from wing vi sih blanket orders . None of the decisions relied upan by the High Court justify such wholesale. secondtksel orders . Moreover , from the mere фотn sd- ince employee for one year , it cannot be pressenied that there is need for regular post . Such a presumpen may he justified only when such continuance extend, severas vears . Further, there can be no rule of hume lick matters . Conditions and circumstances of ane unit say the be the same as of the other . Just because anmecasd a direcion was given to regularise employees who have punone year's service as far as possible and ubject filling rise qualifications, it cannotbe held 2730מוזל d every rese , such a direction must follow respectate of and without taking into account the other eleved cifcuntanas atal considerations. The relict must be mouldal in each case naving regard to all the reke ? facts and ciccteristRoces of that case. It cannorte.. Techanical act Put a judicious one. From this, the ma cone directions must be held to be totally untenable sen usustainable . Thus , the Supreme Court set aside the orckerx af lowerCouns .He further relied on the decision reported in 1997 11SEC I ASHWANI KUMAR AND OTHERS VS. STATE OF HIHAR AND OTHERS wherein the Full Beach of the Stpreme Court has considered the above regularisation of appointmeru in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itself was illegal and word is concemed, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise. if the candidate concerned is appointed in an irregular manner or on ad- hoc basis against an available vacuncy which is already sanctioned. But , if the initial entry itselt is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still bern baby . Under these circumstances , there was no occasion to regularise them orto give them valid confirmation . The so called exercise of confirming these employees , cherefore , remained a noullity. " "Therefore, learned counsel for the Respondent contended that these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the RespondentBank . Further , he relied on the rulings reported in ATR 1997 SCC 3657 HIMANSHU KUMARVIDYARTHI & ORS V. STATE OF BIHAR AND ORS, wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances, their disengagement from service cannot be construed to be a retreachment under the I.D. Act . The concept of retrenchment therefore , cannot be stretchedto such an extent as to cover these employees . Since they are only dailywage employers and have no right to the posts, [ भाग- खण्ड ( ii) ]

has held that " regularisation furthermore, is not a mode of appointstent and if appointment is made without following the rules, the same being a nullity , the question of confirmation of an employee upon the expiry of purported period of probation would not arise. " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR VS. SURINDER KUMAR, the Supreme Court has held that it is not disputed that the appointment of the Respondeat was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment ruks . Any recruitment made io violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS S.C. PANDEY wherein the Supreme Court has held that "only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that "the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Clovernment in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore." 16. Relying on all these decisions, beamed counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Farther, when they have not been questioned the five seulements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent Bank , they are not entitled to dispute the same and they are estopped from doing so. Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently, amended by settlements , the Petitioners cannot now question either the preparation ofwait list or number allotted in them. Under such circumstances , it cannot be questioned by the Petitiuner.

5099

भारत का राजपत्र अगस्त 4 2007/ श्रवण 13 , 1929

Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, 1 find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent/Bank.

18. Further , the representative for the Petitioner contended that in a similar cases , this Tribunal had ordered for reinstatemeal with back wages and these disputes are also similar in nature and hence, the Petitioners are entitled for the same relief.

19.But, I find since the Supreme Court bus held that temporary comployees are not entitled to claim any rights for regularisation , merely because they have completed 240days ofcontinuous service in a period of 12 calendar months and the Supreme Court has also held that each case mustbe considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to clairo regularisation or reinstatement in the Respondent/ Bank as alleged by him. Therefore, I find this point against the Petitioner,

Point No. 2:

The next point to be decided in this case is to what reliefthe Petitioner is enilled?

20. In view of my foregoing fintings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Cosis.

21.Thus, the reference is answered accordingly.

(Dictated to the PA . transcribed and typed by him, corrected and pronounced by me in the open court on this day the 31st January. 2007).

K. JAYARAMAN, Presiding Officer For the Petitioner WWI Sri A. Sekar WW2SV. S. Erambaraud For the Respondent

17. I food much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard 10 preparation of wait list and also settlements entered into between the Respondent Bank and Federation, at the time of reference , they have not questioned the settlement nur the number allomed to each individual in the wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or other inducements . Vader such circumstances , I find the

MW1Sri C.Mariappan MW2Sri C. Ramalingara Documents Marked:

Ex. No. Date

Description

Xerox copy of the paper publication in dailyThanthi based on Ex. M1 .

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondeat/Bank for implementation ofEx .Ml.

5100

THE GAZETTE OF INDIA: AUGUST 4. 2007 / SRAVANA 13 , 1929

W3 24-49

[PART IS (1) W20 260197 Xerex copy of the letter advising selectie fart Lime Mental G. Pandi

W21 31397

Хегох copy of the circular of Respondent/ Bank 10 all Branches regarding absorption of dailly wagers in Messenger vacancies .

01-05-91 Хегох сupy of the advertisement in the Hindu on daily wages based on Ex , W4.

W5 20-08-

Хегох copy of the advertisement in The Hindu eslending Period of qualifying service to daily wagers.

W6 15-397

Xerox copy of the circular letter of Zมาเสน Office, Chennai About filling up ul vacancies of messenger posts.

W? 25-3-91 Хегоx copy of the circular of Respondent/ Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

1405-81 Xeros cupy of the service certificate issued by Sinathozhil Branch .

W10 3-8-88 Xerox copy of the service certificate. issuedby Mannady Branch .

WI] 10-689 Xerox copy of the service сспібане issued by Purasawalkam Branch.

W12 25-08 89 Xerox copy of the service certifikate issued by Triplicane Branch .

W13 21-1292 Xerox copy of the service certificare issued by Anna Nagar Branch .

Xerux copy of the administrative guidelines in reference book on staff matters issued by Respondenь/Вайк regarding recruitment to subordinate care & service conditions ,

W15 NI

Xerox copy of the Reference book on Staff matters Vol . If consolidated uplo 31-12-95.

W16 0603-97 Xerox copy of the call letter from Maduraj ZonalOffice for interview of messenger post-V . Muralikannan

WJ7 06-03-97 Xerux capy of the call letter from Maduni zonal office For imerview of messenger post-K. Subburaj W18 06-03-97 Xerox copy ofthe call leier from Madurai zonal office for interview of messenger post-J. Velmurugan

W19 17-03-47 Xerox copy of the Service particulars- J. Velmurugan

Xerux copy of the appointment order Sri G Pauh.

Feh . 2005

W22

N 395 ul Madura : Circle Xerox copy of the pay slip ot T. Sexar for the month of February . 2005 waitlis:

W25 13-02-95 Xerox copy the Madurai Module Circular ietter alvu Ingaging teropoгагу ensplusers from the panel of wait last .

W24 09-11 93 Xerox copy of the Heart Office circular No. 28 icpauliny. Nerms for sanction of тевыепретстаff.

W25 0947-92 Xeгoxy nie asinutes of the B : рапіте meeling

W36 09-07-92 Xerox spy of the sendement herac Respondiaritrix and All India Staff Bank of India Staff Federation for implementataon of noms Ghunot pur. ame general allers .

W27 17-02-06 Xerns copy of the local Head Office circular aur Conversion of part time employees and redesignate them as general arrends

W28 31-12-85 Xerox topy of the local Heac: Office circular alı: Appointment n lempurary employees in subdiale cadre .

1 For the Respondent Management:-

Ex . No. Daw

Description

1] 17-11-87 Xerox copy of the seulement .

M2 16-07-88 Xerox copy of the senlerrient .

M3 27-10-88 Хотсay of the settlement .

M1 0901-91 Хетох copy of the settlement .

MLS 1-07-26 Хегох cupy the settlement .

Mó 09-06-96 Xerus Lucy of the minutes el conciliation proceedings.

M7 28-46 91 Xerox copy of the order in W.P.

M8 1566-38 Xerox copy of the order in O.P. No. 2787: 07 ligh Court ofOrissa .

419 10

Xerex copy ofthe under of Supreme Coun in SLP No. 3082/99

MIO Nil

Xerox Lopy of the watit list of Chennai Mednie .

M1: 25-10-09 Xeres by ul the urder passed in CMI Nc.16389 and 15290/99 in W.A Nu 1863/99 [ भाग - खण्ड ( i ) ]

नई दिल्ली, 19 जुलाई , 2007

का.आ. 2203.औद्योगिक विवाद अधिनियम , 1947 ( 1947 कः 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के वीच , अनुबंध में निर्दिष्ट औद्यागिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरण , चैत्रई के पंबाट ( संदर्भ संख्या 234/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकारको19-7-2007 को प्राप्त हुआ था ।

[ सं. एल-12012/442/ 98 -आईआर ( ची- I ) ] अजय कुमार, डेस्क अधिकारी New Delhi, the 19th July, 2007

8.0. 1203.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government herchy publishes the Award (Ref. No. 234 / 2004) of the Central Government, Industrial Tribunal Labour Court, Chennai as shown in the Annexure in the Industrial Dispute between the management of StateBank of India and their workinen , received by the Central Guveramencon 19-7 2007 .

[No. L-12012/442/98 - IR (B- L) ] AJAY KUMAR , Desk Officer

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAJ. TRIBUNAL-CUM- LABOUR COURT, CHENNAF

Wednesday, the 31st Jamary , 2007

PRESENT:

K. JAYARAMAN, Presiding Officer IndustrialDispute No. 234/2004 Principal Tambour Court CGID No. 160/99] In the matter of the dispute for adjudiation under clause(d) of sub- section ( 1 ) and sub - section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), between the Maanagerment of State Bank of India and their workmen)

BETWEEN

Sri R. S. Sinasubramanian

5101

भारत का राजापत्र अगस्त 4, 2007/ श्रवण 13 , 1929

referred this dispute carlier to the Tamil Nadu Principal LabourCourt , Chermal and the said Labour Court has taken thedispute De its file as CGIDNo. 160/99 and issued notices to both parties. Both sides entered appearance and filled their claim statcanent and Counter Statement respectively. After the constitution of this COTT Cum labour Count , the Baid dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as LD. No. 234/2004.

2. The Schedule mentioned in that order is as follows:

"Whether the demand of the workman Shri R.S. Sivasubramanian, wait list No.513 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled? "

3. The allegatious of the Petitioner in the Claim Statement are briefly as follows :

: TParty/Petitioner

AND

: Party/Management

TheAssistant General Manager, StateBank of India , 7.0 Chennai .

APPEARANCE

Por the Petitioner

:Sri V. S. Erambaram ,

Authorised Representative

M/s . K.S. Sundar , 1'or the Manageльет

Advocates

AWARD

1. The Central Government Ministry ofLabour. vide Oxder No. L- 12012/442/ 98 - TR ( R.1 ) dated 12-02-1999 bas The Petitioner was sponsored by Employment Exchange for the post of sub staff inClass IV cadre in State Bank of India and he was given appointment as messenger after an Interview and medical examination . He was appointed on temporary basis at Royapettah branch from 30-09-85. The Petitioner was orally informed that his services were no more required . The non-employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent / Bank, in addition to its counter , filed a copy of seulement under Section 18( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settleraent is with regard to absогранни of Class IV temporary workmen who were denied comployment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was aureasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Royapettah branch . He was called for an interview by a Coramitize appointed by Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class TV employee. The Petitioner has been working as a temporary messenger and sometimes performingwork in other branches also. While working on temporary basis in Mandaveli branch , another advertisement by the Respondent /Bank was made regarding casual workers who were reported to be in service during the same period . While the Peitioner was working as such, the Manager of the branch informed the [PART -SEC . tij 5102

THE GAZETTE OF INDIA: AUGUST 4, 2007/ SRAVANA 13. 1929

Petitioner ortalily on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence, the Petitioner raised a dispute with regard to his non-employment. Since the conciliation ended in failure . the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Peritioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent Bank tu antique to engage him in service as obtained prior to 3143-97 and to regularise hirm in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence . since according to the Respondent /Rank . it engaged the Petitioner only in temporary services after the scalemспи . The Petitioner was tot aware of settlement by which bis services and number of days worked by him after interview do not meri consideration . The Peritioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer .Therefore, theRespondent's action in obt absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 250 & 25H of the 1.D. Act . The termination of the Peritioner is against the provisions of Pura 522 (4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent' Bank bas been Regulerising according to their whims and tancies . The Respondent/Bank has also not ubserved the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which umounts to violation of relevant provisions of circular. The Responder /Bank engaged the Petitioner and extracted the sameworkjeither by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair Labour practice . The wait list suffers serines infirmoities and it is not based on strict seniority and withour any rationale . Hence , for all these reasons Une Periniomer prays to grant relief of regular employment in Respondent Bank with oll attendant benefits .

employees who are claiming permanent absorption and when their case was espoused by State Hank of India Stall Federation which resulted in five settlements dated 17 11-87.16-07-88.07-10-88.9-1-91 and 30-7-96 . The said seulements became subject matter of conciliation proceedings and minutes were drawn under Section 18031 of1.D.Act In terms thereat , the Petitioner was onnsidered for permanent appuistiment as perhis eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No.510 in wait list ufZonal Office . Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointed by Responden/Rank . It is lalse im allege that the Petitioner worked as a tempoгагу messenger . The Petitioner was engaged only in leave vacancies as and when it aruse . When the Petitioner having subanitted to selection process in terms of seitlements drawn as per retrenchment prius isions referred to above. Can Luca Tusulaikė claim appointment . Such of thuse temporary employees whic were appointed were engaged for more number ot days and hence, they were appointed . Under the settlement . eminyces were categorised as A,15 and C. Considering their remporary service and subject to other eligibility criteria .iur.der category (A) the tenaporary employees who were engaged for 240 days were tu be considered and under category (B ) the lempinar employees who have completed 271 days aggregate temporary service in any sentironus block of 36 calendar months and under category (C ) the temporary employees who have completed 30 days aудуедате tеmрогary servare in my salendar year after 1-7-75 or min 7 days aggregate remporary service in uny continuous block of36 calendam monhs were to be considered . As per clause 7. the length of temporary service was to be considered for seniority in the wait list and it was agreed that wait st was to lapse in December 1991 and the cut off dute was extended up to 31-3-97 ku filling up vacancies which were το arise upto 31-12-94 . The Petitioner has no valid and enforceable right ing appointeenm . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies anά τοι ίτ. regular permanent vacarvies . In terms of atoresaid settlements , our of 744 wint listex: candidates . 357 temporary employees were appointed since the Petitioner was wait listed al 510 he was appointed . The said settlernents were bona fide which were the only warkable sulutime and is hinding on the Personer . The Perisioner is estopped from questidoing the seldensers directly or indirectly arul hos claim is liable in be rejected . Further , the sand verrlements were out questioned by any union so far and the senlements of bank level selllemens and operated throughout the country The Tamil Nadu Industria : Establishment (Contermem of Permanent Stanis to Workmenį Act . 198 : does not apply to Respondent: Bank and this Tribunat has no jurisdiction terlach plea. It is not correct to 4. As against this , the Respondent in its Counter Statement jalleged that reference made by the Govt. for adjudicatiun try this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment / absorptino does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making clairm as per Claim Statement, The settlement drawn under provisimus of Section 1801 ) and 18 ( 3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The cluim of the Petitioner is not bona fide and made witch Wterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent Bank engaged the temporary employees for perforinagce of duties jas messenger and such engagements were prevailing from the year 1970 onwards. Such of those 5103

भारत का राजपत्र अगस्त 4, 2007/ आवण 13 , 1929

-खण्ड 3 ( ii) ]

say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also to correct 10 say that the Petitioner was discharging the work of permanene roessenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employces and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further, for circle of Chennai wait list of dailywages was nut finalized and hence not published and there is only one wait list for the appointment of temporary employees. After the expiry of wait list, the Petitioner has no ciaim for permanent absorption. Hence, for all these reasons , the Respondent prays to dismiss the claim with costs .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out hy the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable righe cashrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total bag for his future employment , Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed wurkmen with ultericu motive. The Respondent Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence, the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Stall Federation were under Section 18( 1 ) of the Act and not under Section 18( 3 ) of the Act. As per recruitment rules of theResponden Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions Inid down under codified circulars of the Responden Bank . Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is falseto allege that the settlements are contrary to the rights ofthe Petitioner. Hence, the Petitioner pray's that an award may be passed in his favour .

7. In these circumstances , the points for ray consideration are :

"Whether the demand of the Petitioner in Wait List No. 513 for restoring the wait list of temporary messengers in the Respondent 3218G07-37

Bank and consequential appointment thereupon as temporary messenger is justified?"

"To what relief the Petitioner is entitled?" ( ii)

Point No. 1

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petstioners in the connected indusarial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wuit listed in termя of the rellevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on termporary basis.After engaging them intermittently for some years, the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since theRespondent /Rank serminated several tempoгагу employees in , the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workomen. concerned and while the matter was pending in Writ Petition No. 542 (Civil ) 1987, the Respondent/Bank hurriedly entered into a sertlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Wrir Petition. This settlement has become an exhibit of the RespondenBank and has been charked as Ex . MI . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

9. On behalf of the Positioner , it is contended that thesePetitioners were recruited as temporary comployees in the Respondent/Bank under the guidelines and circulars issuedby the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and amy seachement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18(1) entered into between the allegert Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforccable right for appointment, in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exoceding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have involked the relevant provisions of Chapter VA of 5104

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PART II-SFC. A (ii )

1 the J.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable rightfor appointment as Section 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligable to be reinstated . Iearned representative fur the Petitioner conrenkled that in 1996 LAB & TC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the 1.D. Aptproviding for retrenchment is not enacted only for the betefit of the workmen to whom Section 25F applics bur for all cases of recrenchment. Therefore, the application of Section 2511 cannot be restricted only to une category of retrenched workmen. Therefore , the contention of the Respondeam/Bunk that the Petitioner has no valid and enforccable right for appointment is untenable . It is further Dontended that on behalf of the Petitioner that Ex , W2 , W3 and Ws as well as Ex . M8 which constitute/ relate to the Circular idstructions of the Respondent /Bank issued from time to time in connection with the implementation of the ettlements on absorption and which are statutory in chauer . Further , a combined study of Ex.Ml and the averosentaofMW and M and their testimonies during theестов -ехаміна ?ioncross-exa we clearly show how the bank has give a raw deal the Petidiener frost, the beginning linking bis fucure wech the sittlements . Further, Clause 1 ofEx . MI deals with categ: lization of retrenched temporary en., oyees int . A Bare C. but this categorization of 'A, B&L fe oposed to the doctrine of' last come- first first he last go ' and therefore , the categorization in Clause : illeget . Clause i fal of Ft.Mt provides an opperadaly te persons who were engaged on casuat basis and allowedto work in leave / casual vacancies of mcascogens , furashes , cash coolies, water boys, sweepers etc. foi absorption along with the other eligible categories of tempusiury employees is not valid. Futber, engaging casuals repo messengerial work is in court: vention of the guidelines mentioned in Reference Hook or: Staff matters , copy ofwhich is starked os Ex.W8 . Further.the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions. In such circumstans es, tine alvorption of castals along with the eligible categ iries is not valid . Therefon , these persons who werejengated by the Respondent/ Bank on casal burie should not be given permanent appointment in the hank servibe. Theise casuals were given more beneficiat reatment in the in ner of arr . ving a qualifving service for interview and seele tion. But temporary employees have notbeen informe bout this ameriment which includes casuals affecting. tw. interes and chance Further , as per instructions in Ex.4 2 : Hur types of waiting lists have tobe prepareż . But Urve Respondent Back has alleged to have prepared unly one wait lisi for each modul : as per EXM 10 in this casa, Those candidates under Ex.M10 were fount kuitable for appointment us mes engers and sweepers . Even MW 1 is unable to say as to wisen the wait list Ex.M10 was prepared, but is is mentioned in Ex M10 that it was prepared based on the settlemens dated 17-11-87 , 27.10-88 and 9-1-91 which are marked as Fx , Ml . M3 and M4

respectively . Bur, when MWI has spoken about the settlements , he deposed thar settlement dated 27-10-88 was mor included in the Madras circle since the Iligh Court order is there , but he has not produced any document in support of the so called non- inctusion except his bald starement . Further . sording to MWI wait list woder Ex.MIO was prepared on 25 42 but there is no pleacting in the Counter Statement with regaul to this wait list . Funher the Hon'ble High Court has held in its order dated 2.3 7.99 inW.P.No.7872 of 1991 , which is marked as an exhibit , in which it is slated that it is clear that the 1987 settlement was concemed with the temporary class IV employeeswhe were paid scale wages as per Bipartite Settlement whilethe 1988 settlement dealt with daily wager in Class TV calegury who were paid wages daily on mutual agreement basis such circumstances, as rightly contended the Responden are notjustified and wombined the list of candidates onvered unker 1947 sertleacient and 1988 setilement since they formed two distinct al separate classes and they canлог пеат one class and their action undoubtedly amounts w vinlation of Article 14 of Constitution of India . Further , the averment of NW ] and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Responden/Bank by combing equals with unequals . It is further contended on behalt of the Petitioner thar as pei deposition of MWI wait list oder Εχ.Μ10 κυπρarises of bant messengerial aml non- cmessengerial candidates.Whize the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise senlernent , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But . Ex.M3 provides for the same nurms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative ofArticle 14 & 16 of Constitution of lodia . Therefore , the Petitinner contended that preparation of Ex.M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non - preparation of seporate panels amounts to violation of circular. Secondly. it has out been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released : publashed even afterthe Court order in WMP No.11932/91 in W.P.No.7872/91 directing the RespondentBank lo release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore , wait list under Ex . MIO does not carry paniculars about the candidates dare of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things, it is clear that Ex. M10 has been prepared in vinlacion of instructions and ceased to have the credibility arrached to the wait list . Above all . Ex . M ] was not produced at the time of conciliation proceedings heki during the year 1997-98 held at Chennai and Madors and soly during the year 2003 the Respondent/Barix produced the wait list Ex . MIO befure this Tribunal marking it as a confidential document . Its 5105

भारत का राजपत्र अगस्त 4, 2007 / श्रावण 13 , 1929

[ भाग-खण्ड ( ii) )

of management witnesses during the cross examination badbecome apparent that they have no personal knowledge about the settlements which are marked as Ex. M1 to MS . Above all, though the Respondent Bank has referred in voluntary retirement scheme. In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence of Respondent/ Bank has no application to the Petitioner's case. The Petitioners bave completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of ID. Act. It is further contended on behalf ofthe Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240 days , sіпре theRespondent Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . Lie also relied on the rulings reported in 1985 I.LJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL . BANKING CORPORATION wherein the Supreme Court has held that the expression 'actually worked under the employer' cannot mean that those days walywhen the workmen worked with hammer , sickle or pen bul must necessarily comprehend all those days during which they were in the comployment of the employer and forwhichhe had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the termporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Tetitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lists and cut of These Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs, they find themselves stranded in life amidstream. They have also not gainfully employed . In such circumstances, this Tribunal has to pass an award in their favour.

10. Bart, as against this , the learned senior counsel for the Respondeat/Bank contended that the reference madeby the Government itself is not maintainable in view of the facts and circumstances of the case.The Petitioner in this case and the Petitioners in the coanected disputes were not in continuous service . Hence, the question of regular appointmentfabsorption does not arise at all and their engagement was not authorised. Further , the further contended on behalf of the Petitioner that though the Respondent /Bank bas alleged that these petitioners were engaged in leave vacancy , they have not been told at the ume of initial appointment that their appointment was in leave vacancy. Further , even beforeor after the settlement on absorption of temporary comployees, the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo) of the LD. Act, 1947. Though the Petitioner's work in the Respondent Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sasay Award are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SOUL 201 HD. SINGLIVIL RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court bas held that " to employworkinen as ' badlies casuals or temporuries and to continue them as such for many years with the object of depriving them of the status and privileges ofpermanent workmen is illegal. " Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service letter and therefore, the wait listunder Fx . M10 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it. Though clause 2( e ) of Ex . M4 states that candidates found suitable for permanent appointmeal willbe offered appoinment against existing/ future vacaлсу anywhere in module or circle and in case . a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document show how be has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the avermeat and also for the averment of MWI . Therefore , the termination of the Petitioner who was in regular service of the Respondent/Bank is arbitrary , mala fideand illegal and the Respondent/Bank has not acted in accordance with the terms of seulement on absorption of temporary employees . Though the RespondentBank has produced Ex . Mó which alleged to be a copy ofminutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , il is neither a 18 (3) seulemeлі пог 12 (3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex. Mi to M4 made in terms of Ex . Mó . Though the Respondent/Bank produced Fx . M7 and MI ! interini orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No.7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/ Management bas examined two witnesses , the deposition 5106

THE GAZETTE OF INDIA : AUGUST 4, 2007 / SRAVANA 13 , 1929 [PART II-Sec . 3 ( ii )

into two categories namely ( i ) those arrived at enetside the conciliation proceedings wnder section f8f1l of the 1.D. Act and fit) those arrived at in the course of conciliation proceedings under section 18(3 ). Axentemmi of the first category has lemised application and binds merelyparties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of she establishment. Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the series of the settlement , it must be binding on the contesting workmen што. " Не further relied on the rulings reported m AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIESLID VS. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "sealement is arrived at by the free will of the parties and is a pointer to there being good will berween them. When there is re dispute that the settlement is not bona fide in masure or thas it has been arrived at on arcoant offroad , misrepresensation or concealment of facts or even corruption and other inducements, is could be subject matter of yet another industrial dispare which an appropriate Govt. may refer for adjudicarion after examining the allegatrons as there is an underiying assumptions shear the settlement reached with the help of the conciliation officer must be fair and reasonable ." Relying on all these decisions , learned counsel for the Respondens contended that though it is alleged that they are not parties to the settlement , since the foderation in which the l'enitiarier is also one ano ותאשס they have entered into settlement with the anke therefore, it is hiding on the Petitsuner. Further , be argue! that no union of the bank bas questioned the senthement and in such circumstances , it cannot he said char in is n bioding on them and he is estopped from disputing the SOTIC .

11. Learned counsel for the Respondent furthe contended that though the reference made in this case and other connected disputes is ' whether the demanet of the workman with wait lis: No. given fix restoring the wait list of temporary messengers in the establishment of Respondcar Bank and consequential appointment thereupon as tenaporary messenger is justified? The Petitioner contended that the retrenchroent made by the Respondent/Hauk is ruut valid and he has to be reinstated in service with full back wages el Renue, The Pelithuner" > enntention against the reference chade by the Govt. 15 nel valid. Further, in this case , the Court has to see whether the resturation of wat list can be made us contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Sracement .

Petitioners are estopped from making claim as they had accepted the seulements draws under the provisions of Section 18 ( 1 ) and 18 ( 3 ) of the I.D. Act, in lieu of the provisionk of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive. Further, they have concealed the ruaternal facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioneddown in the seniority. The Respondent / Bank was engaging temporary employees due to business. exigency for the performance of duties as messenger . l'urther , the allegation that he was sponsored by Employrdent Exchange is incorrect and the allegation than he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondeut/Bank and the federation were bonafidle which were the only workable sol ลากา ลุก เป is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait tisted and therefore, the Petitioner is estupped from questioning the settlement directlyor indirectly and his claim is liable to be rejected . Furthermore , the said settlements were not questionedby amy uruul and the settlements were hank level settlements and operate throughout the country. Further, he relied on the rulling reparted in 1991 111 J323 ASSOCIATED GLASS INDUSTRIES LTD. VS. INDUSTRIAI . TRIBUNALAP . AND OTHERS wherein under Section 12( 3 ) the union entered infon a settlement with the management settling the claim uf ] workomen and the workmen resigned from the job and received terroinal benefits , but theworkmen raised aplea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held thut "in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, musrepresentation or coercion, the settlement is binding on shur workmen." Learned counsel for the Respondent further relied on the rulings reported in 1997 LLJ 1189 ASHOK AND OTHERS VS. MAHARASIITRA STATE TRANSPORT CORPORATION AND OTHERS wherein the DivisionBench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majarily waian will be binding on all workmen ofthe establishmeız, even those who belong to the minority union which had objected to the same. To that codent, it departs from the ordinary law ofcontrasty, the object obviously is to uphold the sanctity of sesslements reached with the acrive assistance of the conciliation officer and to discourage an individuat employee or a minority union from scuttling the settlement. " I further held that " there may be exceptional cases , where there may be allegations ofmaia fidex,frond oreven corruption or other indurements. But , in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight und consideration. " Learned counset for the Respondent further celled on the rulings reported in 1997 ILLJ 308 K.C.P. LTD .VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Coum has held that "settlements are divided

12. But as against this on behalf of the Peritioner it is contended that anere wording of reference is not decisive in the matter of leniability of a reference and he relied on the culings reported in 1998 LAB IC 345 SECRETARY. KOLLAM MILLA HOTEL AND SHOP WORKERSUNION 5107

भारत की राजपत्र अगस्त 4 2007/ श्रवण 13 , 1929

[ भाग 1Ⅱ-खष्ठ 3( ii) ]

Bank, I find the Petitioner is not entitled to question the settlement

VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " mere wording ofrefance is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot gu beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the warding of reference, subjecting the poor workman to hardship involved in moving the machinery again. " U further beld that "the Tribunal should look into The pleading and find out the exact nature of pleading of thePeticioner to find out the exact mature of dispute instead of refusing to answer the reference on merits ." Further, be argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which be relied on the rulings reported in 1998 LAB KC. 164 VANSAGNATHAN ORIENT PAPER MELS V. INDUSTRIAL TRIBUNAL & ORS. wherein theMadinya Fradesh High Court has held that "The Tribunal cannot go behind the terms of reference, but that does not mean thar it cannot look into the pleadings of parties ." He also relied (in the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VI. PRESIDING OFFICER, LABOUR COURT. MADRAS, wherein it has been held that it has been repeatedly held that the Labour Court should no attempt to consider the order under reference in a textanical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable roann ." He also argued that in. Express Newspapers P. Ltd. case reported in AIR 1999 SC569 the Supreme Court has held that "the Tribunal has jurisdiction to consider all incidental matters also and she order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, at should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . Relying on all these decisions , the representative for the Petitioner argued that though in the refference, it is not mentioned that whether the retrenchroent is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent Bank and cherefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by biro and whether he is entitled to the back wages as alleged by him . Therefore, the arguthent advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time ofwait list has been exhausted , now the Petitioner cannot question that he sbould be reinstated in service and be relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VUHESH wherein the Supreme Court has held that " the only question which falls for determinurtion in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case , praning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus sالسا and a policy decision has been laken to reduce the mumber of vacancies and consequently , a certaio namber of bottom personswere removed from the select list and the remaining selectees were given appointments according to their comparative merits. In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 19976SOC584 SYNDICATE BANK & ORS VS. SHANKAR PAULAND OTHERS wherein the Supreme Court has beld that "by its lener dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seck permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panch expiring on 6-2-98 , we are of the opinion that theRespondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. WES thus , misconceived and therefore, the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has bell that " candidates included in merit list bas no indefeasible right to appointment even if a vacancy exists " and relying on a ال these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala file on the part of theResponden Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by bim. Farther , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS VE PIARASINGHAND OTHERS wherein the Supreme Court has held that " now conting to 13 I find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? Bul , I find that the settlement was valkily entered into between the Responden/Bank and Federation and since it is not questioned by any of the unions of the Respondent 5108

PART II --SLC. Ki ) THE GAZETTE OF INDIA : AUGUST 4. 2007/ SRAVANA 13, 11:29

onlydue to exigencies and they have not appointed against uny regular vacancy and they have only appointed in leave vacancies and therefore . they are not entitled to claim any absorption in the Respondent Bank Jurther , he relied on the rulings reported in ATR 1997 SCC 3657 HIMANSHL KUMAR VIDYARTHI & ORS STATE OFBIHAR AND ORS. wherein the Supreme Court has held that "they are termporary employees working on daily wages . Under these circumstances . their (lhsengngement In service canal he construed in be a retrenchment under the 1.D. Act . The concept of retrenchment therefore, cannot be sereiched to such an extent as so cover these employees . Since they are only daily wage employees and have no right to the posts, their disengagement is act arbitrary ." He further rehed on the rulings reported in 19943 LLJ : Supp ) 754 wherein the Rajasthan High Court hus held tha : " Under Secтоп 25G of the I.D. Act retrenchmens procedure following principleof 'last come- first go is not mandatory but only directory , on sufficient grounds shown. the employer is permitted to depart from the sand principle retrenching seniors and retaining juniors. Though in this case , the Petitioner has alleged that his junanes have heen made peunanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank . Any how , if the Petitioner has shown anything. the Respondent/Bank is ready to establish the fact befure this Tribunal that he lias workext more days than the Petitionen. In such circumstances , die prayer for reinstateanent int the services of Respunden / Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with COSES .

15. Learned Senior Advocate further argued that even in recent decision reported in 20064 SCC 1 SECRETARY. STATEOF KARNATAKA VS. L : MA DEVI , The Supreme Court hasheld that merely because a temporary employce or a casual wage worker is continued for a time beyondthe term of his appointment . he would notbe entitled to he absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to The Court to prevent regular recruitment at the instance of temporary employees whose perioki of employment has come to an end or of ad hoc employees whin hy the very nature of their appointment , de mar acquire any righr ." Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of bis employment . He accepts the employment with open eyes . It may be true that he is not in aposition to bargain -not at arms length since he might have been searching for some employment so as to eke out bis livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme ol' appointment , perpetuate illegalities and to lake the view that a person who has temporarily or casually got ensployed should be directed to be continued permanently . By doing so , it will be creating another mude of public appointment which is not permissible . " Further , the directionthat all those ad- hoc temporary employees who have continued for more than a year shouldbe regularised , we find it difficult to sustaio is. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad- hoc / temporary employee who has been cominued for one year should be regularised even though ( a ) no vacancy is available for him which means creation of a vacancy (b ) he was not sponsored by Employment Exchange en was he appointed in pursuance of a notification calling for applications which means the had entered by a hack docu (c) hewas not eligible and qualified for the post ar the linie of his appointment ( d) his recard of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale . unconditional orders . Moreover, from the mere continuation of anad-hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to saveral years . Further, there can be on nule nf thumb in such roatters . Conditions and circumstances of one unit may not be the same as of the other. Just because inone case, & direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must bemoulded in cach case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one. From this , the impugned directions must be held 10 be totally untenable and unsustainable. Thus , the SupremeCoun set aside the orders oflower Courts. He further relied on the decision reported in 1997 SC ASHWANI KUMAR AND OTHERS VS. STATE OFEIHAR ANDOTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees those entry itself was illegal and void is concerned, it is to he noted that question of confirmalism or regularisation of an irregularly appointed candidate would arise, if the candidate conced is appointed in an irregular maner or on ad- hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances, there was no occasion to regularise them or to give them valid confomation . The so called exercise of confirming these employees , therefore , remained a nullity." "Therefore, learned counsel for the Respondent contended that these temporary employees were appointed 5109

भारत का राजपत्र अगस्त 4, 2007 / मायण 13 , 1929

[भागे -खण्ड (ii ) ]

such circumstances , it cannot be questioned by the Petitioner.

17.1 find much force in the coulention of the learned counsel for the Respondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent /Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list. Further , the Petitioners have not questioned the settlement and they have not alleged that settlementwas not a bona fide in onture or it has been arrived at op accuunt of mala fide, misrepresentation, frand or even curruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners comnot claim for reinstatement or regularisation in services ofthe Respondent /Bank.

18. Further, the representative for the Petitioner contended that in a similar cases, this Tribunal bad ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

the Supreme Court while laying down the law, has clearly beld that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee....... It has to be clarified that merely because a temporary employee or a casual wage worker is concioued for a time beyond the term of his appointment , be would not be entitled to he absorbed in regular service or ruade permanent merely on the strength of such continuance , if the original appointinent was not made by following a due process of selection as envisaged by relevant rules . " Further, inCDI 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that "regularisation furthermore , is not a mode of appointment and if appointroent is made without following the rales , the same being a mullity, the question of confirmation of an employee upon the expігу of purported period of probation would not arise. " Turther , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUIANPUR VS. SURINDER KUMAR, the Supreme Court has held thu "it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of Constitutional scheme cashrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further, in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO VS S.C. INDUSTRIES DEVELOPMENT CORPORA PANDEY,wherein the Supreme Court has held that " only because an employee had worked for more than240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that "the changes brought about by the subsequent cecisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , In view of the sealed legal position, as noticed hereinbefore ."

19.But, I find since the Supreme Court bas held that temporary employees are not intitled to claim any rights for regularisation, merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as allegedby him. Therefore, I find this point against thePetitioner.

Point No. 2:

The next point to be decided in this case is to what relief the Pedrioner is entitled ?

20. In view of my foregoing findings that the Petitioner is a temporary crmployee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as clainned by bim. No Costs.

21. Thus, the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him, currected and pronounced by me in the open court on this day the 31st January , 2007)

K.JAYARAMAN, Presiding Officer 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements, the Petitioners cannot now question either the preparation of wait list or number allotted to them. Undea $110

THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13. 1929 (PART I-SEC 3( ii) ) Witquesacs Ex

W16 17-03-97

For thePetitioner

Xerox copy of the Service particulars- J.Velourugan

ww! SriR.S. Sivasubramaniam ww2Sri V.S.Eambaram

W17 26-03-97

For the Raspondent MWI Sri C. Mariuppen

Xerox copy of the letter advising selection of part time Menial G. Pandi MW2 Sri C. Ramalington

W18 31-03-97

DocumentsMarked:-

Xerox copy of the appointinent order to Sri G. Pancti

Ex.No. Dale

Description

W19 Feb. 2005

Xerox copy of the paper publication in dailyThanthi based onEx. MI .

Xerox capy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle.

W2 20488

W20 13-02 95

Хегоx copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

Xerox copy of the Maduria Module Circular letter about Engaging tempогагу employees from the panel of wait list .

W3 24-4-91

W21 09-11-92 Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff .

Хегох copy of the circular of RespondenuBank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W22 09-07-92

01-26-91

Xerox copy of die minutes of the Bipartite meeting.

Xerox copy of the advertisement in the Hindu on daily Wages based on Ex . W4.

W23 09-07-92

20-9-91 Хетох сopy ofthe advertisement inThe Hindu extending Period of qualifying service to daily wagen.

₩6 15-197

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms -creation of part ume general altendants.

W24 07-02-06

Хеніх сopy of the cironlar leder of Zonal Office, Chennai Abont Alling up of vacancies of messenger posts .

25-397

Xerox copy of the local Head Office circular about Conversion of part time employces and redesignate them as general attendants .

W25 31-12-85

Хегох copy of the circular of Respondent/ Bank to all Branches regarding identification of messenger vacancies And filling them before 31-3-97 .

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinace Cintre.

For the Respondent/Management :-

Xerox copy of the instruction in Reference hook on staff about casuals not to be engaged at office/branches to do messengerin !work.

Ex .No.Duke

Description

30-09-85

MI 17-11-87 Хегох copy of the settlement .

Хетох copy of the service certificate issued by Royapettah Branch.

W10

16-07-88

01-11-96 01-11-90

Xeгox copy of the settlement.

Xerox copy of the service certificate. issuedby Mandaweli Branch.

M3 27-10-88 Хегоx copy of the settlement.

WII NI

1454 09-01-91 Хетоx copy of the settlement.

30407-96 Хагоx copy of the settlement :

Μό 09-06-95

Xerox copy of the administrative guidelines in reference book on staff rmatters issued by Responden/Bank regarding recruitment to subordinate care & service conditions .

Χιτικ copy of the minutes of conciliation proceedings .

W12 N

M 2806-91 Хегоx copy of the order in W.P. No.787291.

Xerox copy of the Reference book on Staff maliers Vol. III consolidated upto 31-12-95

MB 15-115-98

W13 06-08-97

Xerox cupy of the order in O.P. No. 2787: 97 ofHigh Court ofOrissa.

419

Xemx copy of the call letter from Maduraت zonal office For interview of messenger post-V. Muralikannan

10-07-99 Xerox copy ofthe urder of Supreme Coun in SLP No. 3082/99

W14 06-46-97

MON

Xerox copyof the call letter from Madurai zonal office For interview of messenger post- K . Subburaj .

Xerox copy of the wait listof Chennai Moxlule.

Wt5 06-08-97

Mil 25-10-99

Xerox copy of the calllecter from Madurai zonal office for interview of messenger post -J . Velonunugan

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99 [ भगखखण्ड ( ii) ]

नई दिल्ली, 19 जुलाई, 2007

कर. आर. 2204.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का (4 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्यागिक व्यधिकरण/ श्रम न्यायालय , चेत्रई के पंचाट ( संदर्भ संख्या 233/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/431 /98 - आईआर ( बी -1 ) ]

5111

भारत का राजपत्र अगस्त 4, 2007/ श्रवण 13 , 1929

refered this dispute earlier to the Tamil Nadu Principal Labour Court , Csennai and the said Labour Court has taken the dispute on its file as CGID No. 152/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statcument respectively. After the constitution of this CGIrCum Labour Court, the said dispute has been transferred to this Tribunal for adjudication this Tribunal has numbered it as I.D.No. 233/2004.

2. The Schedule mentioned in that order is as follows:

अजय कुमार , 'डेस्क अधिकारी

New Delhi, the 19th July,2007

S.O. 2204. In pursuance of Section 17 of the Lochustmal Disputes Act , 1947 ( 14 of 1947) , the Central Goveromem hereby publishes the award (Ref. No. 233 / 2004) ofthe Central Government , Industrial Tribunal-cum- Labour Court, Chennai as shown in the Annexure in the Industrial Dispute between the management of StakeBank ofIndia and their workmen , received by the Central Coverrunem on 19.7.2007.

"Whether the demand of the workman Shri L ..Babu, wait list No. 431 for restoring the wait list of temporary messengers in the establishment of StateBank of India and consequential appointment thereupon as temporary messenger is justified? If so, to what relief the said workman is entiled?" 3. The allegations of the Petitioner in the Claim Statement are briefly as follows:

[No.T-12012/431 /98- IR (B- L) )

AJAY KUMAR, Desk Officer

ANNEXURE

REFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, CHENNAI

Wednesday, the31st January,2007

PRESENT:

Shri K. JAYARAMAN , Presiding Officer Industrial Dispute No. 133/2004

(Principal Labour Court CGIDNo. 152/99) (In he matter of the dispute for adjudiation vader clause(d) of sub - section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) ,betweenthe Management of State Bank of India and their workmen).

BETWEEN

Sr. L. Babu

: I Party/ Petitioner

AND

TheAssistant General Manager , II Party /Management StateBank of India, 2. 0. Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram ,

Authorised Representative

: Mrs. K. S. Sundar, For the Management

Advocates

AWARD

1. The Central Govermanent Ministry of Labour, vide Order No. L-12012/ 431/98 - IR (B- 1 ) dated 10-2-1999 has 32181-38

The Petitioner was sponsored by Employment Lixchange for the post of sub staff in Class IV cadre in Stale Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary hasis at Periamet branch from 6-8-1984.The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petinion fibed by State Bank Fimployees' Union in Writ Petition No. 542/87 which was talken up by the, Supreme Court . The Respondent/Bank, in addition to its counter , filed a copy of settlement under section 18 ( 1 ) reached between management of State Bank ofIndia and All India State Bank of India Staff Foderation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the seulement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable, the Respondent/Baok brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submimed his application in the prescribed format through Branch Manager of the P'eriamet branch. He was called for an interview by a Committee appointed by Respondent/ Bank in this regard . But, they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally to join at the branch where he initialty worked as a class TV employee . From 6-8-1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While workingon temporary basis in Avadi branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-1997 that his services are not required any more and he need not attend the office from 5112

THT GAZETTE OF INDIA :AUGUST 4, 2007 /SRAVANA 13. 1929

[PART SEC. 31 ) 1-4-1997, Hence, the Petitioner raised a dispute with regard to his non - employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Government in reconsider the reference and the Pecitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-1997 andto regularise- him in service in due course . The Respondent ' Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated its cl no crinsequence, sirke according to the Respondent/Bank, 11 engaged the Peritinner only it temporary services after the settlement . The Petitioner was out aware of settlement by which his services and number of days worked by him. after imerview do not ment consideration . The Peritioner was not & party to the seulement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in ont ahsnching hirn in regular service is urijust and illegal . Further , the settlements are repugnant to Section 25G & 251 of the 1.2 . Act . The termination of the Petitioner is against the provisions of Para 5224) of Sastry Award. Even though the serilement speaks about three categories only a single wait list has been prepared and the Respondent /Rank has been regularising according to their whims and fancies . The Respondent Bank has also not observed the instructions regarding, prani of incremenrs ,leave, medical benefits ek: The temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner und extracted the same work either by payment of petty cash or by directing him as work under assammed name or by both which amounts to unfair labour practice.The wait list sutlers serious infirmities and it is not based on strict seniority und without any rationale. Hence, for all these reasons the Petitioner prays to graci relice of repular employment in Respondent/Bank with all astendant benefits .

L 4. gainst this , the Respondent in its ner Statementialleged that reference made by the Goverителт for adjudication by this Tribunal itself is not maintainable. The Perititner was not io continuous service . Hence, the question of reputar appointmes absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Clairn Statement The settlement drawn under provisions vἱ Section 19: Land 18 ( 3 ) uf LD . Act in licu of pmvisions of lew, retrenchment and implemented by RespondentBank . The homof the Petitioner is not bona fide and made with heror toove . The Petitioner concealed the material facts Bathe was waitlisted as per his length of engagement and 2013 not be absorbed as he was positioned down in sensority . Due to the business exigency , the Responden Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and

when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987.1607 1988,07 11) 1988.9-1-1991 and 30-7-1996. The said settlements became subject mader of conciliation proceedings and minutes were drawn under Section 1813 ) of T.D. Act Internis Lereof , the Petitioner was considered for perntament appointment as per his eligibility along with similarly placed other temporary employees and the Petirioner was wait listed as catalidate No.43 ] in wail list of Zonal Office . Cleanan. So fir: 357 wait listed temporary candidates , out of 144 wait listed temporary employees wеrе реrталенdy appointed by RespondeauBank. I is false tu ailege that the Pettioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies asanl when it aruse . When the Petitioner having submitted to selection process in terms of senlemerus drawn as per teltercament provisions referred to above . canont turn around and claam appointment . Such of those Tempoiny explugees who weге appointed were engaged far more number of day sand verice, they were appunted. Under the settlemem.employees were categorisealis A, and C. Consilenng their temporary service and subject n other eligibility antezia, under category (A ) the tempoгary employees who were crampal for 2411 days were to be considered and under category ( B ) the temporary employees who have ruleted 270 days aggregate temperary service in any cuous block of 36 calendar months and under careers the temporary employees who have completed 30 days apgreyale termpitary ser in any calendar year after 1-7-75 or mimum 70 days aggregare temporary service in any continuous block of 36 calendar merrts were to be considered . As per clause 7. the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wout lis: was to lapse in December , 1991 and the cut olt date was extended up to 32-2-1997 fn: rilling up vacancies which were 10 arise upto 31-12-1994 The Petitinner has to saind and enforceable right for apprint The Respunden: had implemented the volentary rerirement scheine aad evern the permanent vacancies stand substantially reduced . There were no regular vacancies availabic . The peculiar problem, was due to the facts that all the aforesand lemporary entployees were wecking in Leave vacancies and nn: u regular permanent vacancies . In terms of aforesaid settlements, in wait isted candidates . 357 temporary employees were appointed and since the Perigauner was wait listed al 4.31 he was not appointed. The said seulements were bona fide aluch were the only workable solution and is hinding ca the Peattoner The Pecitinner is estopped from questioning the senilements chrectly or indirectly and his claim is base to be rejected Funhci . the sail sentlemenits were not questioned by any arica se far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishmen (Couferment of Permanent Stars to Workmen) Aст . 1981 dres not apply to RespondenuBank and this Tribunal has na jurisdiction to enter air, such plea . It is not correct ic say finat decurnents and identity of Petitioner was verified before the Peritonea waser.gaged . It is alse not correct to [ भागखण्ड (ii) ;

5113

भारत का राजपत्र अगस्त 4 , 2007/ श्रावण 13 , 1929

( i) "To what relief the Petitioner is entitled ?"

PoántNo. 1 :

say that the Petitioner was discharging the work of permanen messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of besротагу employees und vacancies for 1995-96 has to be filled up against the wait list drawo for appointment of daily wages Casual labour . Further , fot circle of Chennai wait list of daily wages was hot finalized and hence noi published and there is only one wait list for the appointment of temporary employees.After the expiry of wait list, the Peritioner has Do claim for permanent absorption. Hence, for all these reasons , the Respondent prays to dismiss the claim with costs.

8. In this case , on behalf of the Petitioner it is contended thar the Petitioner in this case and thePetitioners In the connected industrial disputes have been sponsored by Employment Exchange and they having been called fur interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of theRespondentBank io permanent vacancies in subordinate cadre on temporary hasis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in . the year 1985, the State Bank Employees Union had filed a Whit Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) 1987 , the Respondeo Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement hasbecome an exbibit of the Respondent/Bank and has been marked as Lix . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimatioι τ notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the recrenchnent as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

5. In the additional claim statement, the Petitioner contended that he was having heen sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Responden/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the RespondentRank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitionerbe engaged even in menial category , thus , the Respondent Bank imposed whal bau for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberarcty delayed in filling up the vacancies by the wait listedworkroen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims aad fancies .Hence , the Petitioner prays that an award may bepassed in bis favour.

6.Again, the Petitioner filed a rejoinder on the Couruer Statement of the Respondent, wherein is is stated all the settlements made by the bank with the State Bank of India Staff Federation were under section 18 ( 1 ) of the Act and not under section 18( 3 ) of the Act. As per recruitment rules of the Respondent/Bank , recruitment of class IV staff io the Respondent/Bamik is in accordance with the instructions laid down under codified circulars of the Respondent Bank. Even in the Writ Petitionbefore the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the seulement dated 27-10-88 and 9-1-91. It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence, the Petitioner prays that an award may be passed in his favour .

7. In these circumstances , the points for my consideration are :

(1) "Whether the demand of the Petitioner in Wait List No. 431 for restoring the wait list of temporary messengers in the Respondent Bank and consequential appointment thentupon as termporary messenger is justified ? "

9.On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees in the Respondent Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case . the Petitioner is not bound by settlement under section 18 (1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent /Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar mootbs and was not in continuous service on 17-11-1987, therefore, they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars / guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they bave invoked the relevant provisions of Chapter VA of the LD. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 250 and 25H are very much applicable to the Petitioners who are retrenched messengers PART IT-- SFL :. 3 (1 ) THE GAZETTE OF INDIA : ANGUST 4, 2007 /SRAVANA 13. 19:29

5114

inclusion except his bald stateme :11 . Further , according to MWI wait list under Ex M10 was prepared on 2-5-92 bu : there is no pleading in the Counter Stutement with regard to this waitlist . Purther the Hon ble high Court bus held in its order dated 23-7-99 ir. W. N.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was enacemed with the temporary class TV employees who were paid scale wages as per Bipartile Settlement while the 1988 settlement dealt wish daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances . as righly contended the Respondent are not justified and combined the list of candidares covered under 1987 senlement and 1988 settierment since they formed twu distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to viclation of Anicle 14 of Constitution of India Further , the avertment ofMWI and the statements in Counter Stаtеmеnt аrе contrary in the above and ir is mithing but a desperate attempt to wriggle out the illegality committed or perpetrated hy the RespondenuBank by combing equals with unequals . 11 is further contended on behalf of the Petitioner that as perdeposition el MW| wait list under Lix .MI In comparises ofboth messengerial and non- messengerial candidates While the temporany employees were appointed after due process of selection and were paid wages on the hasis of industry wise settlement . It is not so in the case of casuals. Therefore, both belongs to two different and distinct categorics . But, Ex.M3 provides for the same nums to the casuals us on the case of temporary employees in the matter ofabsorption . Thereture , it is violative of Article 14 & 16ol Constitution Di India. Therefore , the Petitioner contended that preparation ul Fix M1 namely wait list is oul inconformity with the instructions of Ex . M2 and กดต preparation of separate panels amounts to violation ul circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period froni 1987 to 1994 Turnhermore. no wait list was released/ published even after the Court order in WMP No. 11932/91 in W.P.No.7872/91 directing the Respondent/Bank to releuse the list of successful condidates pursuant to the first advertisement published in The Hindu dated 18-88 . Furbermore , wait list under Ex . MIU does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list .Above all . Ex . Ml was not produced at the time of concillation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidencial document . It is further contended on behalf of the Petitioner that though the Responden Bank has alleged that these petitioners were engaged in leave vacancy , they have nut been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before on after the settlement on absorption of temporary employees .

and are eligible 10 be reinstated . Learned representative for the Petitioner, conscoded that in 1996 LAB & IC. 2248 CENTRAL RANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-A ot the LD . Aut ponviding for retrenchment is notenacted usily for the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment . Therefore, the application ofSection 25H cannot be restricted only to one category of retrenched, workosen . Therefore , the contention of the Respondent/ Bank that the Petitioner bas no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex .W2 . W3 and wa as well as Ex . MB which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. lunher , a combined study of Ex Mi and the averments of MWI and MW2 and their testimonies thuring the cross-examination will clearly shiow how the bank has given a rasw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause I ofEx . M! deals with categorization of retrenched temporaгу employees into 'A, B and C' , but this categorization of 'A,B&C is quite upposed to the doctrine of last come- first go' or first come last go and therefore , the categorization in Clause I is illegal . Clause ] ( a ) of Ex. MI provides an opportunity to persons who were engaged on cusual basis and allowed to work in leave/ casual vacancies of messengers, farashes , cash coolies , warer boys , sweepers etc for absorption alung with the other eligible categories oll temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff marters, copy ofwhich is marked as Ex . WB. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the cligible categories is not valid. Therefore , these persons who were engagedby theRespondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving al qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casnals affecting their interest and chance. Further, as per instructions in Ex .W2 four types ofwaiting lists have to be prepared. But the Respondenw Bank has alleged to have prepared only one wait list for each module as per Ex. M 10 in this case. Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to sayBS to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-9 ) which are marked as Fr.MI , M3 and M4 respectively . But , when MW1 has spoked about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- 5115

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uncl it constitutes post reference period and hence evidence ofResponden /Barık has in application to the Peritierer's case. The Petitioners have completed the service of 240 daysand more insa ennriaunus period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service ul the Respondent / tamabeyape entitled to the benefits under the provisions of [ .D . Act le is further contended on behalf of the Peitioner that though some of the Petitioners in the connected I.D. have not completed 240 days, since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days un which the Petitioners have actually worked and bence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 1 1.LJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VA MANAGEMENT OF AMERICAN EXPRESS INTERNATIOΝΑΙ . ΒΑΝΚΙNG CORPORATION wherein The Supreme Court bas heid that the expression " actually worked underthe employer canaut mean that those day > onlywhentheworkmen worked with harmmer , sickle or pen but must necessarily comprehend all those days during which they were in the employ ment of the employer and for which he had been paid wages either under express or isophed contract of service or by compulsion of statule, standing orders etc. It is further, argued that call letters pornituced hy le Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have subintitted their application for absorption as per the hank's civeullar and therefore, their retrenchment is illegal . In all these cases, the Petitioners were in employment us sub-staff in early 1980s but were denied turther engagem on account of settlements /lapsing, of wait lists and out of dhese Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar moths and they are an age group of 40.05 years and for no faul ud theirs . they find themselves stranded in life midsuearn They have also not gainfully employed . To such circumstances , lais Trisomal luas to pass an award in their favour.

10 Hul , as against this , the leamed senior counsel for the Respondent Bank contended that the referenes made by the (Gonerarment itsell' is out maintainable in view of the facts and circumstances of the case . The Tenirioner in this case and the Peticioners in the connected dispones were not in continuous service . Hence , the question of regular appointmentiabsorption dues not arise at all a their engagement was not authorised . Further , the Petitioners are esiopped from making claim as they had accepied the seulements drawn under the provisions of Section 1Rij and 18 (3 ) of the 1.D. Act. in liest of the provisions of law and iraplemented by the Respondent Rank and the claim of the Petitioners are nor bonatide and are made with ultetor moive . Purther , they have concealed Lie cxpression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2100 ) of the 1.D. Act, 1947. Thongluhe Tetitioner's wwers in the RespondentBank is continunus and though thener has performed the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied va the rulings reponia 1985450020111.D . SINGHYS . RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Cour: has beld thue to employ workmen as 'badlies' casals or temporaries and to continue them ay much for many years with the object ofdepriving them of the seacus und privileges ofpermanent workmen is illegal " Learned representateve further contended that Ex . M10 Hait list has out been prepared in acenrdance with principle of senonly in the legal senesc. since the selected candidates with longest servowe should huve priority over those who joined the wwe later and therefore, the waic list under Ex . MLO which lains been drawn up is contrary to law and also bad in law . Thu. the Respondent Bank has not acted in accordance with the last aand the spiral of the settlement, ut wlation and in breach of it . Though clause 2 (2 ) of Fx . M4 states that candidates found suitable for permanent appointment will he offered appointmeat against existing fancy anywhere in module or circle and in case . a wand dare faiko auzept the offer of appontment or posting witna the prescribed period , he will be deemed to have relused it and the name shall stand deleted from the espective panel und he shall have on further clains for heing considered for permanent appointment in the hank. The RespondentBank bas out produced any dwment to slow how he has arrived at the senioriry and rill dare , it is a int stery as to who that senior was and there is un documentary evidence in support of the avernent and also lor the averment of MW 1. Therefore , the termination of the 「ecitioner who was in regular service of the Respondenu Barnas arhijsary, mala tide and illegal and the Respondeno Band has hot acted in accordance with the terms of seulement on absorption of remporary employees Though e Respondent Bank has produced lix . 16 which allegisl che a copy of minores of vaciliativa proceedings dated -6-75 before Regional Tatusu Conutrissiutier ( Central ) , Isderabud , it is neither a 18 ( 3 ) settlement aor 12131 serelerme 1 : as laimed by the Responent/Bank which says only with regard 10 modifiscation of LA. M1 10 M4adk 12rms ofEx M6 Though the RespondentBank produced LA. M. and MI interim orders passerd hy High Court of Madres in WMP No. 1193291 in W.P. No. 7872491 ceased tehase any relevance when the main writ has been disposed of in the yuan 1994 anul therefore , they do not have my bearning ir. the case of the Petirioner. Further , though the Respondeau Management has examined two witnesses .the Jeposition of management witnesses during the cruss nhac become apparent that they have no Cal krios ledge about the settlements which are markıl SEA. MI to MS . Above all , though the Respondens Bank aas referred re volumary retirement scheme. In the RespontBack wils implemented only in the year 2001

22 : 81 /07-34 [PART TL- SFC. 3J THE GAZETTE OF INDIA AUGUST 4. ZINIUSRAVANA 15.192

en all worksher of the establishment Ever its case of the first category , if the seitement was reached with representative raunf which the contesting waxknen were members arul if there was nothing unreasonable or unfair in dhe terms of desenlemeat . it must be binding on the curesting, workmer, also. He further reized on theralings repurcel in ATR 3000 SC 469 NATIONAL ENGINIFTRING INDUSTRIES LTD. V SLATE OF RAJASTHAN AND OTHERS where the Supreme Court was held Gat "settlement is arrived at by die jee will of the parties son a pointer to Liere wing good will between them . Wher there is a dispanse thar the settlement is er sonudide : nature or that it has been arrived alon accounted Leau . misrepresemation or concealment of facts se ever. curruption and other incarcereals, ir enuld be subject be of yer another induscial dispone which an appropriate in may refer for adjudication after examining the alligawns as Diere is an under yang sunpring that the sellleu reached with: the help of the concihatun officer must be cair andrewwahle " Relying on allthese decisions .Lzzmed counsels: the Respondent contended that though alleged Phey are parties to the serilement . sin the Tederation in the Per me is also glen . They have entered internlement with the barns d therefore, its bodrigonte Petioner . Furthesжелес that : en.on of the bark has questioned the selijeme binding on her and nes estopped dispurn 1 :

1. Learnease for the Responderr further ontended that we reade in this vast and ccted disewhether the dem kmar with wast ist No given for restoring the wall list tempus essengers in the establishment of Resoorden:Bakalnsequential aper Thereupon messenger 12 justificat ? The Petitionerend that the reverstonerit inade by Respondent Bakalid and he has kenirared service with ficllage Hence, the Feli tenrin agains : ire releremo made by the fes all . Father , in ini case the Code whe the restoration of waist : חום.זר tenzed the Perriere: aanstelements dieged by the Petitionerin ke

2.But as cgienst his or hali of rh: Perheers contended that mere wording of reference is not decisive in the matter of tenamity reference and the relied ralings reported in 1995 TAB IC 345 SICRETARY. KOIAN JILLJOOF ANDSHOPWORKERSINION A. INDUSTRIM. TRIBUNAL . KOLIAM whe ニコた KeralaHigh Court hell farmere wording ofreference is ace deci - ive in the call frenability eference . Eventhouge The Tribunal cleverd the order ci reference , if printerenz are discernib's from the marzrial becere has deyards davide герове: тeder some ecarica nefeers in the wave subjecting the p 5116 the maternal facts that the Petitioner was wait listed as per length of his engagement and could not be absurbed as he was positioned down in the seniority . The Respondent Bookwavengaging temporary employees due to busin exigzaky for the performance of chities as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temowary messenger is also incurrexit, hay were engaged against leave vacancies The seplement entered into by the Respondent/ Bank and the Federatica were honatide which were the only workable sulution and is binding on the Peticioner . The Petitiusier accepted the setterment and accordingly he was want listed and therefore . the Petitioner is estopped trom questioning the setLumenl directly or indigetly and his claim is liable to be rejected . Thesmore , the suid settlemeals were int questioned b amyumion and the settlemeans were hank level settled ears and operate throughout the country . Further , be relied on therulings reported in 1991 1LLJ 329 ASSOCIATED GLASS INDUSTRO'ST.TT2 . VS. INDUSTRIAL TRIOUN M. Α.Ρ. AND OTHERS wherein under Section 12:31 the univ entered inro a settlement with the management setting the chum ef ] ] workmen and the workroen resigned from the jandusrived terminal benefits , but the workmen raised a plen before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court aas held lat in the absence of plea that the serrlement reached an the course of sunciation is vitiated by fram stepresentation on coercion , the settlemens binding ya he werkmen . " Learned couarsel for inc Respondes ! further relied on the rulings reportea in 1991. 1139 ΑΜΠΟΚ ΑΝΤΙ OTHERS VS. MAJLARASHTRA STATL TRANSPORT CORPORATION ANDONIALS Mercin c Division Bench of the Bombay High Court hus hele Lui "therein a settlement arrived at in the course of the conciliarior proceedings with a recognises majority uncon will be binding on all workroen of the establishmemen those who belong tothe minority union which had chrjecod rothe same. lu that extenr , ir departs from the orderin contacts the object obviously is upholdthe sanctity sellene reached with the active assislar eur d'arien officer and te discourage an individual eriglice nu a mirarity union from scatlang deserlermeni . " In father held that " there may be exceptiucial cases , where laeze may allegations of male tides . fraud of ever. corrupcon or other inducements. Bur , in the absence d such allegations, a settlement in the course of collective hargaining is colilled w due weight and consideration . " Learned counsel for the Respondent furtherrelied on the rulings reported in 1997 LJ 308 K.C.P. LTD . Vs PRESIDING OH ICERANDOTHERS wherein the Suprete Court has held that settlements are divided into twe categbres rarely those arrived an outside the concilia Prandings ander Section 107 of the 1.D. W and ii Dese auived ar in the course of conscaliation provεςάτες Under Section 3 ) seriemeat of the Lirst coregon s linused applicatua arul bingk merely parties to 21 1 and the seserd category made with a revoprised radit has extended upplications will bring | भाग ॥-खण्क 3( i)]

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wortoroan in hardship involved in moving the machinery again." It further held that "the Tribunal should look into the pleading und find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits ." Further ,he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1996 LABIC: 1664 VANSAGNATHAN ORIENTPAPER MILLS Vis. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya PradeshHigh Court has held that "the Tribunal cannot go behind the terms of reference, but that does not mean that It cannot look into the pleadings of parties." He also relied on the rulings reported in 1998 LAB IC 1507 A.SAMBANTHANVE PRESIDING OFFICER, LABOUR COURT, MADRAS, wherein it has been held that "A has heen repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manger , but should consider the order ofreference in a fair and reasonable manner. " He also argued That inExpress Newspapers P. Ltd.'s case reported in AlR 1993SC 569 the Suprerse Court has held that the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected in decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is hot happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions, the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchmen is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore, the argument advanced on the side ofthe Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner. Therefore, I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or Lot? But, I find that the settlement was validly cotered into between the Respondent/Bank and Federation and since it is ont questioned by any of the unions of the Responden Hank. I find the Petitioner is not entitled to question the settlement .

held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy." In that case , praning of select list on reduction in number of vacancies was made in view ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number ofbottom personswere removed from the select list and the retining selectees were given appointments according to their comparative merits. In which, the Supreme Court hasheld that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reponed in 1997 6 SCC 584 SYNDICATE BANK ORS Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has beld that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanentl appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yestrty panel expiring on 6-2-98, we are ofthe opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permisment absorption in the services of the bank.Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SOC 47 SHANKARSAN DASH V. UNION OF INDIA wherein the Supreme Court has held that " candidates included in morit list has no indefeasible rightto appointment even if a vacancy exists" and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was roade with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, be relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANAAND ORS.V1 PLARA SINGH AND OTHERS wherela the Supreme Court has held that " now coming to the direction that all those ad-hoc temporary employees who have continued for more than a year shouldbe regularised , we find it difficult to instain it. The direction has been given without reference to the existence of a vacancy. Thedirection in effect means that every ad-hoc/ temporary comployee who has been continued for one year should be regularised even though ( a ) no vacancy is available for him which incans creation of a vacancy; (b) he 14. Then the learned counsel for the Respondent puntended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reponed in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V. VIJEESH wherein the SupremeCourt has was not sponsored by Employment Exchange nor was he 3218 GM07-40 PART I-SEC . 3 ( 11 :

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concept of retrenchment therefore , cannot be stretched a such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts, their disengagement is not arhitrary . He further relied on the rulings reported in 1994 3 LLJ ( Supp .) 754 wherein the RajasthanHigh Court has held thar " Under Section 25G of the LD.Act retrenchiment procedure l'ollowing principle of "last come first go ' is not mandatory but only directuly , in sufficient grounds shown , the employer is pemontted in depart from the said principle retrenching seniors and retaining juniors. Though in this case , the Peritioner has alleged that his juniors have been made permanent ir. hanking service , he has not established with any evidence that his juniors were made permanent by the Respondent Bank. Any how . of the Petitioner has shown anything , the Responden /Bank is ready to establish the fact before sh Tribunal that he has worked more days than the Petitioner . In such circumstances, the prayer for reinstatement in the services of Respondent Bank cannot be given to the. Petitioner and, berefore , the claim is to be dismissed with costs .

י appointed in pursuance of a notification calling for applications which means be had entered by a back door; (c) bewas pot eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by os in para 12 which would arise from giving of sach blanket orders . None of the decisions relied upon by the High Court justify such wholesale. unconditional orders . Moreover, from the mere continuation of anad hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters. Conditions and circumstances of one unit may not be the same as ofthe other.Just because in one case, a direction was given to regularise employees who have but in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be hold that in each and every case , such a direction must follow respective of and without talking into account the other romant circumstances and considerations . The reliedmusl bemoulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 ITSOC LASHWANI KUMAR AND OTHERS Vis. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts."So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, ifthe candidate concerned is appointed inan irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such porported regularisation or confirmation is given , it would be an exercise in fatility. It would amount to decorating a still born baby. Under these tances, there was the occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore, remained a mullity." Therefore, learned counsel for the Respondent contended that these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to clairo any absorpcion in the Respondent/Bank. Further , he reliert on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMARVIDYARTHI & ORS VE STATE OF BIHAR AND ORS . wherein the Supreme Court has held that "they are temporar employees working on dailywages. Under these circumstances , their disengagement from service cannot be consumed to be a retrenchment under the 1.D. Act. The

15. Leamel Senior Advocate further argued that even in recent decision reported in 20064 SCC 1 SECRETARY. STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has heldthat merely becaихе а тетрогагу сmployee. or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end ur of ad har employees who by the very nature of their appointment, do nut acquire any right . " Further, it has also held that " it in not as if, the person who accepts un engagemem either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not im aposition to bargain-not at artos length since he might have been searching for some employment so as to eke out his livelihood and accepts whalever he gets . But on that ground alone, it would not be appropriate to jettison the constitucional scheme of appointment , perpequate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to he continued permanently.Bydoing so , it will be creating another mude of public appointment which is not permissible. " Further , the Supreme Court while layingdown the law, bas clearly held that "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.......It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , be would Dot be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance. if the original appointnient was nor made by following a due [भाग खण्ड (ii ) ]

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not a bona fide in nature or it has been arrived at on account ofmala fide,misrepresentation, fraud or even corruption other inducements . Under such circumstances , 1 find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for termporary employees to be absorbed, I find the Petitioners camot claim for reinstatement or regularisation in services of the Respondent/Bank .

18. Further , the representative for the Petitioner contended that in a similar cases, this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the sarve relief.

process of selection as envisaged by relevant rules . Further, CDJ 2006 SC 443 National Fertilizers Ltd. and OthersVs. Somvir Singh, wherein the Supreme Court has beid that "regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation of an employee upon the expiry of purported period of probation would not arise." Further, in CDJ 2006 SC 395 Municipal Council , Sujanpur Ve Surinder Kumar , the SupremeCourt has held that " it is not disputed that the appointment of theRespondent was not in sanctioned post . Being a'State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 of the Constitution of India wouldbe void in law. " Further , in 2006 2 LLN 89 Madhya Pradesh StareAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that "only Ibecause an employee had worked for more than 240days of service by that itself would not confer any legal right upon him to be regularised in service ." The Supreme Court also beld that "the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation, privarisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore. "

19.But, I find since the Supreme Court has held that temporary employces are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought aboutby the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondend Bank as alleged by him . Therefore, I find this point against thePetitioner.

Point No. 2:

The next point to be decided in this case is to what relief the Petitioner is entitled?

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus, the reference is answered accordingly.

(Dictated to the P.A., transcribed and typed by him , cotrected and pronounced by me in the open court on this day the 31st Janингу. 2007 )

K. JAYARAMAN, Presiding Officer

Wistmined:

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as kemporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by seattlements , the Petitioners cannot now question either the preparation ofwait list or number allotted to them .Under such circumstances , it cannot be questioned by the Petitioner.

For the Petitioner

Ww] SriT,, Babu

WW2 Sri V. S. Ekamberaro

For theRespondent : MW! Sri C. Mariappan MW2 Sri C.Ramalingan

Documents Marked-

Ex.No. Date

Description

WI 1-8-88

Xerox copy of the paper publication in daily Thanthi based on Ex. MI .

PARY -SEC- THE GAZETTE OF INDIA: AUGUST 4, 2007/ SRAVANA 13, 1920

5120

W18 17-3-97

Xerox copy of the Service particulars- J.Velmurugan.

20489

W19 26-3-97

Хегоx copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx .Mt.

Xerox copy of the letter advising selection ofpart time MenialC.Pandi.

W20 31-3-97 Xerox copy of the appointment order to Sri G. Tandi.

W21 Feb.2005

24-449] Xerox copy of the circular of i Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies

1-5OL

Xerox copy of the pay slip of 7.Sekar for the month of February , 2005 wait list No.395 ofMadurai Circle.

Xerux copy of the advertiserment in The Hindu on dailywages hased on Ex . W4.

W22 13-2-95

20-1-91

Xerox copy of the Manduria Module Circular letter about Engaging temporary cmpinyees from the panel of wait list.

Xerox copy of the advertisement in The Hindu extending Period of qualifying service to daily wagers.

9-11-92

W23

WG 15-5-97

Xerox copy of the Heart Office circular No.28 regarding Norms for sanchon of messenger stafi

1 Xerix copy ofthe circular letter of Zonal Office, Chennai About filling up of vacancies of messenger posts .

W24 9-7-92 Xerox copy of the minutes of the Bipartite meeting.

2513-97

9-7-92

W25

Xeras copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

Xerox copy ofthe settlement between RespondentBank and All India Staff Bank of Indiu Staff Federation for implementation of norms -creation of part me general amendants.

W26 7-206

Xerox copy of the instruction in Reference book on stall aboни сакција not to be engaged at office/branches to do messengerial work.

Xerox copy of the local Head Office circulur alout Conversion of part time employees and redesignate them as general intendants .

2011-93 Хетох copy of the service vertificate issued by PeriametBranch.

W27 31-12-85

2011-93

W10

Xerox capy of the service certificare issued by Avadi branch .

Xerox copy of the local fiead Ofice ciccujar about Appointment of ten:porary employees in subordinate cadie.

25-1-05

W11

For theRespondent/ Management:-

Description

Ex. No. De

Xerox copy of the letter from Petitioner toRespondent/ Management for service certificate.

Xenx cupy of the settlement .

M1 1711-87

W12 N

Xerox copy of the settlement .

copy acknowledgement Xerox of the postal

M? 11-7-88

Хегox copy of the settlement

MG 27-10-38

W13 Ni

Хетах copy of thic settlemeal .

M1 91-95

Xerox copy of the senderisent .

MS 10-7-95

M6 96-95

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Barik regarding appointment of temperгагу employees .

Xerex spy of the minutes of conciliation proceedings .

W14 Nil

M7 28-5-91 Хегах copy of the order in W.P. No.7872/91.

Xerox copy of the Reference book บา Staff maters Vol . III consolidated upto 31-12-95.

15-5-98

63-97

W15

Хегоx copy of the order in O. P. No.2787/97 of High Court ofOrissa .

619 11-7-99

Xerox cupy of the call letter from Madurai zonal office for interview of messenger post- V. Muralikannan .

Хегоxopy ofthe urder of Supreme Court in SLP No. 3082199.

W1616-3-997

MIO №1 Хегох соpy of the wair list ofChe anos Module .

Хегол сору of the call letter from Madurui nul office For interview of messenger post-K. Subhuraj

M11 25-10.99

Xerox copy of the order passed in CMP No.16239 und 16290/99 io W.A Ne 1893499 .

Xerox copy of the call lerter from Madurai zonal office for interview of mеssерест post J. Velmurugan .

[भाग - खण्ड 3( ii) ]

5121

भारत का राजपत्र अगस्त 4, 2007 / श्रावण 13 , 1929

नई दिल्ली , 24 जुलाई , 2007

कर. आ. 2205-औधोगिक विवाद अधिनियम, 1947 (1947 का ( 4 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार एरोनॉटिकल कम्यूनिकेशन स्टेशन के प्रचंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के नीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ तम न्यायालय नं -1 चण्डीगढ़ के पंचाट ( संदर्भ संख्या आई.डी. सं. 73/98 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-07-2007 को प्राप्त हुआ था।

[सं. एल-11012/ 12/97 - आई आर ( एम ) ] एन. एस. बोरा , डेस्क अधिकारी

NewDelhi , the24th July,2007

5.0. 2205. In pursuance of Section 17 of the Lndustrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the award (Ref. No. 1. D. 73/ 98) of the Central Government Industrial Tribamal -cum- Labour Court , No. 1, Chandigarh as shown in the Annexure in the Industrial Dispurte between the cumployers in relation to themanagement of Averonautical Communication Station Nub ,Gurgaon, and their workmen, which was received by the Central Governmeal on 24-07-2007.

[No. L- 11012/1297-IR (M)

N.S. BORA, Desk Officer

2. It is submitted in the claim statement by the workman that he was working with the management since 4-9-92 as Chowkidar as daily wage basis at Transmitter Centre Aeronautical Communication Station, Noh, Distt. Gurgaon and his work and conduct is satisfactory . That themanagemanton 1-9-1996 lennitated his services without assigning any reason . That the workman was appointed on & temporary post and has completed more than 240 days in a calendar year. Therefore, the above termination is illegal unwarranted, unconstitutional , malafide, arbitrary and against the provision of law and also against the principle ofnatural justice as to notice, no change sheet or enquiry was held, some junior to the workman are still working and the management have not adopted the procedure of last cum first. Therefore , the management bas contravened the provisions of Section 25- G, Hand Fofthe I.D. Act. The management also withheld the wages of workman for the period 20-7-1996 to 31-8-96. The workraan approached the ALC Rohtak for the conciliation proceedings and the roanagement has given the detail of the workmanbefore the ALC for the period September92 to December 1993 in which it clearly shows that the worloman has worked for more than 240 days . The workman prayed for setting aside the termination order and for reinstatement of the workman for full back wages aال consequential benefits.

ANNEXLIRE

BEFORE SHRI RAJESH KUMAR, PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM-LABOUR COURT- 1, CHANDIGARH

Case No. I. D. 73/98

Shri lakshmi Chand Sto Sh . Ram Parshad, Rio Village and PostOfficeMaheshpur , THE. Palwal , Distt. Faridabad .

Applicam

Versus

The Officer Incharge , Aeronautical Communication Starion ,Nuh, Distt ., Gurgaon Haryana- 12:2001

Respondent

APPEARANCES

For the workman

: Shri DR. Sharma

For the management

: Sari Jagdish Manchanda

AWARD

Passedon 4-7-2007

Central Government vide notification No. L- 11012/ 12/97- IR (Misc.) dated 18-3-98 han referred the following dispute to this Tribunal for adjudication:

"Whether the action of the management of Aeronautical Communication Station , Nuh , Airporn Authority of India , in terminating the services of shri Lakshmi Chand, Casual Labour wef. 1-9-1996 is legal andjustified? If not, to what relief the workruan is entitled to? "

3. Lo the written statement management in preliminary objection submitted that claim statement is not maintainable as the workman was engaged as casual labour in lieu of Ramphal and Jagdish who were proceeded on leave and workman was engaged on leave vacancy. Itwas made clear to the workman that they have been engaged as casual labourer w.e.f. 4-9-92 with clear cut instructions till these two Chowkidars reports for duty, therefore, there is no case for the alleged workman with full backwages. It is also submitted that wurkman who was appointed as casual Labourer and his services were dispensed with in the month ofNovember 1992 , be attended the office for 29 days and was paid the wages of Rs . 1015. Dishonestly and cleverly the workman has tempered the attendance register und written his own name over the name of Rajesh Kurmar who had actually performed the duties of casual labourer . The workman was again engaged as casual labourer in Dec. 1992 and performed his duties as casual labourer till December 1993. The said Jagdish Chand Chowkidar reported for duty on 30-9-92 and Raun Phal on 3-10-1992. The workmart has not completed 240 days therefore , the management has not complied with provisions of the I.D. Act 1947 as he was appointed against the leave vacancy and as and when the person reported baci on duty, the workman was not entitled to continue on the same post. It is معاد submitted that the reference has been raised by the workunan after a gape of more than 4 years . On merits also , it is submitted that workman was engaged as chowkidar in leave vacancy and his work and conduct was not satisfactory. The appointment letter clearly stipulates that the cogagement was made till two Chowkidars reported [PART -SH . 3 (3 ) ] THE GAZETTE OF INDIA : AUGUST 4, 2007 /SRAVANA 13, 192

5122

back for duty and as regular Chowkidars reportedback for duty on 30-9-92 and 3-10-1992, his services have been terminated, the workman was never employed by the management w.e. f. 1-4-1994 10 18-12-1994, therefore, there is no question of termination of his services , the workman was paid wagek for the actual days be worked with the management . I

and bad only relied upon his written statement , atlidavit

4. Rejoinkler also filled by the workman reiterating the claimm madelin the claim staterment.

5. In evidence the workrman filed his own affidavit in evidence and also appeared as his own winess as WW1. On the other hand the management filed in evidence one affidavit of A. Yadav Officer - in-charge, Airport Authority , National Airport Chandigarh who also appeared as MWI in evidence on behalf ofthe managerment . Both witnesses of the workman and the management cross- examined at length by the counsel for the parties.

6. Wortman filed written arguments . On the other hand the managerment did out file written arguments , rather requested that the case may he decided on the basis ot written statement and affidavit of the management and on other record.

8. 1 have luund that as per refereave received for adjudication both the parties are disputing the date of termination . The managerment has denied that workman worked as a casual Jalourer we.f. 31-896 and ason 1-9-96 his services were terminated . Contentions of the manugement in their wrinen statement and in comments also filed before the ALC during the conciliation proceedings are that wurkman was engaged , as a casual Jabour 10 perform the duty ofa Chowkidor in leave vacancy and worked w.c.5.4-99218-12-1993 as detailed in written statement as well as in cornments filed before the ALCO. Гожители Ех . M 2 proves spproval of engaging on leave vacancy The contentions of the wurkman are that he worked w.e.f. 4-9-92 10 31-8-96 and his services were terminated without assigning any reason on 1.9-96 . The workman has also taken a plea that workman has cumplered 240 days in a calendar year and this fact has been admitted by the managemen in wollen starement 1 comments (led before the ALCO. On perosal of the comments I found that managemcot has no where admned that workman has onmpleted 240 days in a calendar year or preceding to the date of termination , rather in the comments filed before the AL.CO and written statement before this court , it is submitted by the management thar Lakshmi Chand rевши engaged as casual labourn ACS Nuh against leave vacancy of regular Chowkidarat ! 8-12-1991 anxi thereafter M/s. Lakshmi Chandabear ixentractur Maheshpur (Palwal ) wils engagerl on contract basis in provide watch and ward to ACS. Nuh from unuary 994 till the contract was dispensert with effort truan 31-8-96. He was never empinyed temporarily by the leptt . w.ef 1-4-92 to 18-1293 , thus question of termination does zx arise and management has given the detail of wurking days in written stalenient as well as in commeans . The management has taken a plea that workman has tempered with the amendance register to increase his artendance . Though the management did not filed original acquaintance Rois and workman has filed photo copies of those acquaintance tolls management Fx.W ] .. W. wherein I have found over writing ofworkin on some others name

7. lo written arguments it is submitted by the worknran that he was engaged as Chowkidaron 4-9-92 шкі onntinued working till 31-8-1996 when his services were terminated without making compliance with the provisions ofSection 25 of the 1.D. Act 1947; that he had completed more than 240 days in 1993, 1994 вло 1995 and also 240 days preceding 10 the date of termination i.c. 31-8-1996 . that the management failed to produce the relevant record despite repeated opportunities to the management and the management in order to frustrate the claim ofthe work man leveled the allegation of tempering the official record though to action has been taken by the management and no FIR was lodged. That in reply before the: Al.C the management admitted of having completest 240 days by the workman. That the management tried to show the workman under the contractor from Jan. 1994 to 31-8-1996. but no agreement or contract was produced by be managerment . Ex . W9 the documents of the management shows that workosan worked from Feb. to July 1996 and Ex.W10 shows that wickinan was appointed on 8-10-1992 w.e.f.4-9-91 and RI also shows that the performed his dury from March 1996 to 30-8-96 and the existence of the documents bever questioned by the management ; rather it is adroitted that the signatory of the affidavit is pot aware whether the workman was engaged as lubour contractor baving valid license and in is further admitted by the management that whenever a contractor is engaged kr any work an agreement is executed and the witness of the management bas shown bis unawareness about executing of agreement with the workman . It is further submitted that the workman never tempered with the record as the is illiterate The AR of the workman also placed reliance on the cases of 1999 ( 2 ) SLR 01 , AIR 1997 S.C. and a judgroent ofCAT reported in 2002 ( 3 ) ATJ 441. In this case learned counsel forthe management did not file written arguments [ भाग खण्ड 3 ( i) ]

भारत का राजपत्र अगस्त 4, 2007/श्रावण 13 , 1929

5123 9. Worknuun has not given any explanation how his name appearing over the name of Rajesh Kumar at several pages and these documents attendance record may he photo copies is being produced by the workman on the record himself.

a social welfare measure, interpretation, shift of judicial orientation must be froth private law to public law interpretation. Wurkman also relied on a CAT judgment that applicants were appointed as sweepers on daily wage basis, thereafter department changed their nature of employment and treating them as casual labourers, claim regularization and regular pay scale of group D employee allowed

10. Further workman has taken a stand that throughout up to date of the termination be worked as casual worker whereas contention of the management are Thatworkman worked thereafter as a contractor. He was given contract and be also deposited the security and also received on termination of contract his security that. I have also seen the document Ex . M2 is a letter dated 8-10-92 addressed to Nuh Airport Authorities regarding engagement oftwo casual labourer in absence of chowkidar in ACS Nub and Ex. M 3 is the copy of application wherein workman requested to refund of his security money of Rs. 3840 which was refunded to him. In the evidence ofthe workman it has also come that Air Port Nah is not in existence so

11. Learned council for the workman submitted that as proved and also has admitted by the management that workenam completed 240 days and management terminated his services without complying with the provisions of Section 25 -P, his termimtion is void asb- nitio we f. 1-9-96 and workman should be reinstated with foil beck wages. On the other hand contention of the management are that workman was never appointed on temporary basis, he was simply engaged on leave vacancy which run upto 18-12-93 and thereafter he worked as a contractor by a contract which was executed and he has also not denied but his corttentions are that workman was not a valid licensees and transaction is a sham transaction,, Management has relied JT2005 ( 11 ) Supreme Court DGM Oil and Natural Gas Corporation Ltd. Vs. Fins Abdul Rehtnan wherein it has been held that no. of days worked pur in broken period can not be taken as continues employment for the purpose ofSection25-F. La Himanshu Kumar Vidyarthi Vs. Stateof Bihar the Hon'ble Supreme Court has held that where petitioner was not appointed in accordance with the statutoryRules but were engaged on the basis of need of work ondaily wages there disengagement from service net a retrenchment under 1.D. Act . Since they are only daily wage employees baving no right to post , their disengagement can not be held arbitrary. In manager R.BI Bangalore Vs. S.Малі ГГ 2005 (3 ) 248 it is held that mon regularization of service of respondents for alleged misconduct of producing false certificate in criminal proccedings court however acquitting the respondents giving the benefit of doubt, request of respondent for re- employment turned down is correct. Management also retird on the constitutional bench case ofHon'ble Supreme Court in Uma Devi Vs. State of Karnataka . On the other hand workman bas referred to 1999(2) SLR contact labour employed for maintenance work, the maintenance work can not by any stretch be ascribed to be of seasonal nature. In AIR 1997 Supreme Court 645 Air India Statutory Corporation Vs. United Labour Union it is hell that Act is

12. To view of the abovejudsabenta referredby both the partics, I have found that in the case of the judgment of theHon'ble Supreme Court in Himanshu Kumar Vidyarthi and Uma Devi Vs. State of Karnataka decided by a consitutional Bench of the Hon'ble Supreme Copurt it is now held that appointment made on the basis of nood of work , Lenoination of their services can not be construed as retrenchment . The petitioner were out appointed in accordance with the rules but were engaged on the basis of need ofwork, on daily wages , their disengagement from service held not retrenchment under the 1.D. Act as they have no right to the above post. Similarly more strong view was taken by the Hon'ble Supreme Court in Constitutional Bench case in Uma Devi Vs. State of Karnataka against irregular, stop gap atrangement where statutory rules were not followed instead some other methods were adopted in making appointments temporarily, workman so appointed have no right to post. I have also found that workomen also made it clear that there is Do existence ofNuh Airport and it appears to be disbanded and not functional and that management by evidence of F..M2 has proved that there was a icave vacancy for casual engagement and on that leave vacancy proved on record workman was engaged in the beginning as a casual labourer And thereafter engagement inade as a contractor without verifying that he is without license for a long periods which is illegal act at the part of Nuh Airport authoritles. It is further established that Nuh Airport is no more in existence. It has come in evidence that at several places in the attendance register the name of the workman is written after striking out the name of other workman and there is no explanation from the side of the workman . If this illegal tempering with the attendance of several year is kept in mind, be has not completed even 240 days in any calendar year. Further the case of the management is that workman was engaged as casual labourer w.e.f. 4-9-92 with clear cut instructions that he is appointed till chowkidar who were on leave return back and when regular chowkidar returned his serviceswere dispensed with. The management proved that workman worked upto December 1993 as well thereafter and there is tempering with the record by him as his nathe is written after striking out the name of one Rajesh Kumar in several months and workman is relying that attendance alleged to existed due to alleged tampering. No FIR lodged taking a lenient view does ont make the act legal . and clearly without this period workman did not say that he worked for 240 days. In the circumstance he also not disprove the contentions of the management that he worked after the period as submitted by the managemem as a (PARI IT- SFC. 3 ( 1) ] THE GAZETTE OF INDIA ALGUST 4 , 2007SRAVANA 13. 1929

5124

NewDelhi . the 24th July,2007

5.0. 2206.-In exercise of the powers conferted hy sub- section ( 3 ) of Section 1 of the Employees ' State Insurance Act. 1948 (34 of 1948) the Central Government hereby appoints the isl August , 2007 as the date on which the provisions of CChapter IV ( except Sections 44 and 45 which have already heen brought into force ) and Chapter-V and VI [except sub -section ( 1 ) of Section 76 and Sections 77.78, 79 and Al which have already been brought imo force ] of the said Act shall come into force in the following areas in the State of Orissa namely:-

contractor lapour taking contract himself depositing the security and when contract is over withdrawing that security arount. Here workman desires that his omissions &mistakes shouldbe forgotten & Management same mistakes be taken seriously. In the circumstance, I am of the considered view that management has proved that wockman was engaged as a casual labourer in leave vacancy and worked op December 1993 and thereafter heworked as a contractor and this situation is created by the faules & bad coutentions of hoth parties and therefore , there is no question oftermination of his services as on 1-9-1996 вз thereafter contract was over and he also withdrew his security debosil.

"The Revenue Village of Kuarmundu . Chadri Hariharpur. Bijabahal , feliposh , Kalosıhiria. Jamunanaki in the Tahsil of Parposh , Kuamunda in theDistrict of Sundergarh . "

[No. S-38013/23/2007 -SS-1 ] S. D. XAVIER, Under Secy .

नई दिल्ली , 24 जुलाई , 2007

का.आ. 2207.-कर्मचारी राज्य बीमा अधिनियम , 1948 ( 1948 का 34 ) की धारी । की उपधारा ( 3 ) द्वारा प्रदात शक्तियों का प्रयोग करते हुए, केन्द्रीय अरकार एतद्वारा 1 अगस्त , 2007 को इस तारीख के रूप में नियत करती है, जिसको उक्त अधिनियम के अध्याय -4 ( 44 व 45 धार के सिवाय जो पहले से प्रसूत हो चुकी है । अध्याय-5 और 6 [ धारा 16 की उपधारा ( 1 ) और धारा -77 , 78 , 79और 81 के सिवाय जो पहले ही प्रवृत्त हो चुकी है] के उपबंध पश्चिम्म बंगाल के निम्नलिखित क्षेत्रों में प्रवृत्त होंगे , अर्थात्,

" बस्टानगर क्षेत्र का अवशेष गैर कार्यान्वित क्षेत्र, अर्थात् मीरपुर मुंगी के पौने, बंगाला और जगतला, महेशतला पुलिस स्टेशन हिल्या दक्षणि 24 दरगना । "

13. Further I am of the considered view that workman has failed to prove that the action of the rmanagement of Actonautical Communication Station , Nuh , Airport Authority of India , in terminating the services of SniLakshmi Chand, Casual labour wef. 1-1996 is illegal and unjustified , management has denied having passed sary such urder and as per their record his termination is much priot in December 1993. There is no violation in termination on 1-9-1996 of the services of workman of Section 23-G, H & F of LD, Act . Therefore , I am of the considered view that managerment proved that termination was just & legal as contract may be illegal was over & workman had no right for reinstalement. Therefore on the other hand workman failed to prove this reference in bis favour, therefore , he is not entitled to any relief. The reference is thus answered in favour of the managemens and against the workman . Central Govt . be informed. File beconsigned to record.

RAJESH KUMAR, Presiding Officer

Chandigaeth.

[संख्ण एस-38013/22007 - एस. एस. 1 ] एम. दो. जैवियर , अवर सचिव NewDelhi. the 24th July , 20XT?

नई दिल्ली, 24 जुलाई , 2007 काःआ. 2206.-कर्मचारी राज्य बीमा अधिनियम , 1948 (1948को 34 ) की धारा -1 की उपधारा ( 3 ) द्वारा प्रदत्त शक्तियों काप्रयोग करते हुए , फेन्द्रीय सरकार एखद्‌द्वारा । अगस्त, 2007 को उस तारीख के रूप में नियत करती है, जिसको उक्त अधिनियम के अध्याय -4 ( 44 व 45 धारा के सिवाय जो पहले से प्रवृत्त हो चुकी है ) उत्ध्यष्य- और 6 [ भाग -76 की उपधारा ( 1 ) और धारा -77, 78 . 79 और है । के सिवाय जो पहले ही प्रवृत्त हो चुकी है ] के उपबंध उड़ीसा में निम्नलिखित क्षेत्रों में प्रवृच होंगे , अर्थात्,

5.O. 2207-11 exercise of the powers conferredby sub -section (3 ) of Section I of the Employees ' Stare Любигаncе Аст . 1948 134 of 1948 ) the Central Government hereby appoines the Ist August, 2007 as the date on which the provisions of Chapter IV ( except Sections 44 and 45 which have already been brought into force) ankl Chapter-V and VIjexcept sut section ( 1 ) of Section 76 and Sectinos 77.78.79 and 1 which have already been brought into force! of the said Act shall come into force in the following areas in the State of West Bengal namely :

"Remaining unimplemented area of Bacanagar , i.e. Mouzas of Mirpur Nungi , Banagla and Jagtala cu Mabestalu P.S. , District - South 24 Parganas"".

" मुंदरगढ़ जिले के पानपोष तहसील में कुआरमुण्डा, चड्ि हरिहरपुर, भीलाबहल , तेलीपोष , काल्लेसिष्हिरिया , जमुनालाकी को राजस्व गाँव शामिल हैं । "

[संख्या एस -38013 /23/007 - एस.एस.-1 ]

[No. S-38013 /22/20007 -SS- 1 ] S. D. XAVIER, Under Secy.

एस. दो, जेवियर, अवर सचिव

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