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जिस्ट्री सं. डी. एल. (एन ) 04/0007/2003-05

21612 REGD. NO . D.L. (N) 04/0007/2003-05

17-12-2001

P.0.185

सत्यमेव भारत का राजपत्र The Gazette of India

प्राधिकार से प्रकाशित

FM - 27

PUBLISHED BY AUTHORITY

CPB.

साप्ताहिक

WEEKLY

नई दिल्ली , अगस्त 5 अगस्त 11 , 2007 , शनिवार/श्रावण 14-श्रावण 20 , 1929

सं. 32 ]

NEW DELHI , AUGUST 5- AUGUST 11 , 2007 , SATURDAY/SRAVANA 14- SRAVANA 2015 No. 32.]

इस भाग में भिन्न पृष्ठ संख्या दी जाती है जिससे कि यह पृथक संकलन के रूप में रखा जा सके ।

Separate Paging is given to this Part in order that it may be filed as a separate compilatio .

भाग II-खण्ड 3-उप-खण्ड (ii)

PART II Section 3-Sub- section (ii)

भारत सरकार के मंत्रालयों ( रक्षा मंत्रालय को छोड़कर ) द्वारा जारी किए गए सांविधिक आदेश और अधिसूचनाएं Statutory Orders and Notifications Issued by the Ministries of the Government of India (Other than the Ministry of Defence).

वित्त मंत्रालय (राजस्व विभाग )

केन्द्रीय उत्पाद एवं सीमा शुल्क मुख्य आयुक्त का कार्यालय विशाखापट्टनम , 31 जुलाई , 2007 संख्या-1 /2007-सी.शु.

का.आ. 2208.-भारत सरकार, वित्त मंत्रालय , राजस्व विभाग , नई दिल्ली की अधिसूचना संख्या 33 / 94- सी.शु. (गै. टे. ) , दिनांक 1 जुलाई , 1994 यथा संशोधित अधिसूचना संख्या 122/2004- सी.शु. (गै.टे. ) , दिनांक25-10-2004 के अन्तर्गत प्रदत्त शक्तियों का प्रयोग करते हुए मैं , आंध्र प्रदेश राज्य के पेद्दापुरम , पेद्दापुरम मंडल , पूर्वी गोदावरी जिला को सीमा शुल्क अधिनियम , 1962 ( 1962 का 52 ) के खण्ड 9 के अन्तर्गत भाण्डागार केन्द्र घोषित करता हूं । [फा. सं. VIII/48/21/2007- मु.आ. ( वि.क्षे. ) ]

पी. एन. विट्टल दास, मुख्य आयुक्त 3287 G1/ 2007

MINISTRY OF FINANCE

(Department of Revenue)

OFFICE OF THE CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS

Visakhapatnam , the 31st July, 2007 No. 1/2007 - CUS.

S.O. 2208.- In exercise of the powers delegated to the undersigned vide Notification No. 33/94- Cus . (NT) , dtd . 1-7-94as amended by Notification No. 122/2004- Cus . (NT) dated25-10-2004 of the Government of India , Ministry of Finance , Department of Revenue , New Delhi , I hereby declare Peddapuram , Peddapuram Mandal , East Godavary District in the State ofAndhra Pradesh to be aWarehousing Station, under Section 9, of the Customs Act, 1962 (52 of 1962).

[F. No. VIII/48/21 /2007 -CC (VZ) ] P. N. VITTAL DASS, Chief Commissioner

(5125) 5126

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC. 3 ( ii) ]

27. श्री के. पी. अनिल कुमार

सूचना और प्रसारण मंत्रालय नई दिल्ली, 11 जुलाई, 2007

28. श्रीमती लक्ष्मी नार्वर

29. श्री एम. एफ. थामस

30. डा. ( श्रीमती ) अनिता कुमार

31. श्रीमती बिन्दू बालाकृष्णन

32. श्री पैलोदे रवि

33. श्री आर. एस. प्रदीप कुमार

34. सुंश्री गिरिजा सेधुनाथ

का.आ. 2209.-चलचित्र ( प्रमाणन ) नियमावली , 1983 के नियम 7 और 8 के साथ पठित चलचित्र अधिनियम , 1952 (1952 का 37 ) की धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तिबों का प्रयोग करते हुए केन्द्र सरकार तत्काल प्रभाव से दो वर्षों की अवधि के लिए या अगले आदेशों तक , जो भी पहले हो, केन्द्रीय फिल्म प्रमाणन बोर्ड कीतिरूवनंतपुरम सलाहकार पैनल का गठन करती है और निम्नलिखित व्यक्तियों को उक्त पैनल में सदस्यों के रूप में नियुक्त करती है । यह इस मंत्रालय की दिनांक 12-7-2005 की अधिसूचना सं. 809/5/2004 एफ ( सी ) का अतिक्रमण करती है ।

: 1. श्री के. आनंदा कुमार

[फा. सं. 809/6/ 2007- एफ ( सी) ] संगीता सिंह , निदेशक ( फिल्म) 2. प्रो. के. बालाकृष्णन

MINISTRY OF INFORMATION AND BROADCASTING

3. डा. लिज्जीफ्रांसिस

New Delhi , the 1 Ith July, 2007

4. श्री के. कृष्णा कुमार

5. श्रीमती चन्द्रामती अम्मा

6. श्री के. जे. राफी

7. श्रीमती पदमाजा राधाकृष्णन

8. श्री टी. के. राधाकृष्णन पिल्लै

9. श्री अनिल अक्कारा

10. श्री जोसफ बाबू वी.वी.

S.O. 2209.-In exercise of the powers conferred by Sub- section (1 ) of Section 5 of the Cinematograph Act , 1952(37 of 1952), read with rules 7and 8 of the Cinematograph (Certification) Rules, 1983 , the Central Government is pleased to constitute the Thiruvananthapuram Advisory Panel of the Central Board of Film Certification and to appointthe following persons as members of the said panel with immediate effect for a period of two years or until further orders, whichever is earlier . This supersedes this Ministry'sNotification No. 809/9/2004 - F(C ) dated 15th June,2005.

11. श्री वी. वी. प्रकाश

1. Shri K. Ananda Kumar

2. Prof. K. Balakrishanan

12. श्रीमती शोभा सोमाशेखरन्

3. Dr. Lizzy Francis

13. श्री माधवन पिल्लै

4. Shri K. Krishna Kumar

14. श्री के. एस. शाहजी

5. Smt . Chandramathi Amma

15. श्री के. एम. जोसफ

6. Shri K. J. Raphy

16. श्री जयमोन अर्थकुन्न

7. Smt. Padmaja Rakhakrishnan

17. श्री इ बी आई जार्ज

8. Shri T. K. Radhakrishan Pillai

9. Shri Anil Akkara

18. श्री अनिल थॉमस

10. Shri Joseph Babu V. V.

19. श्री थंकामोनी दिवाकरन

11. Shri V. V. Prakash

20. श्रीमती दीप्ति प्रदीप कुमार

12. Smt. Sobha Somasekharan

13. Shri Madhavan Pillai

21. श्री एस. के. शिवाशंकरण

14. Shri K. S. Shaji

22. श्री शरत चन्द्रन

15. Shri K. M. Joseph

23. श्री पी. एस. बाबूराज

16. Shri Jaimon Ayarkunnan

24. श्री सूर्या कृष्णामूर्ति

17. Shri EBI George

18. Shri Anil Thomas

25. श्री जोसफ मैथ्यू पलाई

19. Shri Thankamoni Divakaran

26. श्री रोज मेरी

20. Smt. Deepthi Pradeep Kumar 5127

भारत का राजपत्र अगस्त 11, 2007/श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

21. Shri M. K. Sivasankaran

22. Shri Sarath Chandran

23. Shri P. S. Baburaj

24. Shri Soorya Krishna Moorthi

25. Shri Joseph Mathew Palai

26. Shri Rose Mary

27. Shri K. P. Anil Kumar

28. Smt. Lakshmi Nair

29. Shri M. F. Thomas

30. Dr. (Smt. ) Anitha Kumari

31. Stat . Bindu Balakrishnan

32. Shri Palode Ravi

33. Shri R. S. Pradeep Kumar

34. Ms. Girija Sethunath

[F. No.809/6/2007- F (C) ] SANGEETA SINGH, Director (Films ) नई दिल्ली , 11 जुलाई, 2007

का.आ. 2210.-चलचित्र ( प्रमाणन ) नियमावली , 1983 के नियम 7 और 8 के साथ पठित चलचित्र अधिनियम , 1952 ( 1952 का 37 ) की धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए केन्द्र सरकार तत्काल प्रभाव से दो वर्षों की अवधि के लिए या अगले आदेशों तक , जो भी पहले हो, केन्द्रीय फिल्म प्रमाणन बोर्ड के बंगलौर सलाहकार पैनल निम्नलिखित व्यक्तियों को नियुक्त करती है । यह इस मंत्रालय की दिनांक 12-7-2005 के सदस्यों के रूप में अधिसूचना सं . 809/5/2004- एफ ( सी ) का अतिक्रमण करती है । 1. श्रीमती डी. एच. विजया

2. श्रीमती एम. सुधामनी

3. सुश्री अनीता वसंत

4. श्रीमती गीता नोरोन्हा

5. श्री एम. शैरोन लोपेज

6. श्री एस. एन. पाटिल

7. श्री एम. एस. नरसिम्हामूर्ति

8. श्रीमती (डा. ) के. चंद्रिका

9. श्री गंगाधर मुदालियर

10. श्रीमती डा. विजया

11. श्री मौ. शफी उल्लाह

12. श्रीमती वाणी भरत

13. श्री मुंजाने सत्या

14. श्री ( डा. ) यू. बी. जोशी

15. श्री सी. एम. धनंजय

16. श्री के. शिवारामा कृषठा

17. श्री एस. डी. अंकालगी

18. श्री एस. नारायणस्वामी

19. श्री वाई. आर. जयराज

20. प्रो. ए. श्रीधरा

21. श्री शंकरगौड़ा पाटिल

22. श्री एन. आर. गणामूर्ति

23. श्री ज्योतिप्रसाद हेगड़े

24. श्री एस. महेन्द्र

25. श्री मौहम्मद अकरम

26. श्री टी. अमरनाथ

27. श्रीमती हेमलता

28. श्रीमती शशिप्रभा हीरेमठ

29. श्रीमती श्रीललिता

30. श्री बी. ई. श्रीदेवी

31. श्रीमती राधा वेंकटेश

32. श्रीमती निर्मला जयाराम

33. श्रीमती के. जी. नागालक्ष्मी बाई

34. श्रीमती प्रफुल्ला मधुकर

35. श्रीमती सुजयालक्ष्मी अरसू

36. श्रीमती गायत्री कुरतीकोटी

37. श्रीमती प्रामिला जोसाई

38. श्रीमती आर. आंशा

39. श्रीमती ( डा. ) गिरिजा महेशन

[फा. सं. 809/5/2007- एफ ( सी) ] संगीता सिंह , निदेशक ( फिल्म) NewDelhi , the 11th July , 2007

S.O. 2210.-In exercise of the powers conferred by Sub-section ( 1 ) of Section 5 of the Cinematograph Act , 1952(37 of 1952), read with rules 7 and 8 of the Cinematograph (Certification) Rules , 1983, the Central Government is pleased to constitute the Bangalore Advisory Panel of the Central Board of Film Certification and to appoint the following persons as members of the said panel with immediate effect for a period of two years or until further orders , whichever is earlier. This supersedes this Ministry'sNotification No. 809/5 / 2004 -F ( C ) dated 12thJuly,2005.

1. Smt. D. H. Vijaya

2. Smt. M. Sudhamani

3. Ms. Anita Vasanth 5128

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

4. Smt . Geetha Noronha

5. Shri M. Sharon Lopez

6. Shri S. N. Patil

7. Shri M. S. Narasimhamurthy

8. Smt. (Dr. ) K. Chandrika

9. Shri Gangadhara Mudaliar

10. Smt . (Dr. )Vijaya

11. Shri Mohd. Shafiulla

12. Smt. Vani Bharath

13. Shri Munjane Sathya

14. Shri (Dr. ) U. B. Joshi

15. Shri C. M. Dhananjaya

16. Shri K. Shivarama Krista

17. Shri S. D. Ankalgi

18. Shri S. Narayanaswamy

19. Shri Y. R. Jairaj

20. Prof. A Sridhara

21. Shri Shankargouda Patil

22. Shri N. R. Gnana Murthy

23. Shri Joythiprasad Hegde

24. Shir S. Mahendar

25. Shri Mohd . Akram

26. Shri T. Amarnath

27. Smt . Hemalatha

28. Smt. Shashiprabha Hiremath

29. Sma Sreelalitha

30. Shri B. E. Sridevi

31. Smt Radha Venkatesh

32. Smt Nirmala Jayaram

33. Smt. K. G. Nagalakshmi Bai

34. Smt Profulla Madhukar

35. Smt. Sujayalakshmi Arasu

36. Smt. Gayathri Kurtikotí

37. Smt. Pramila Joshai

38. Ms. R. Asha

39. Smt. (Dr. ) Girija Maheshan

[F. No.809/5/2007- F (C) ) SANGEETA SINGH, Director (Films) नई दिल्ली, 11 जुलाई , 2007

का.आ. 2211.- इस मंत्रालय की दिनांक 31 मई, 2007 की समसंख्यक अधिसूचना के अनुक्रम में और चलचित्र ( प्रमाणन ) नियमावली , 1983 के नियम 7 और 8 के साथ पठित चलचित्र

[PART II-SEC . 3 ( ii ) ] अधिनियम, 1952 ( 1952 का 37 ) की धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्र सरकार , तत्काल प्रभाव से दो वर्षों की अवधि के लिए या अगले आदेशों तक , जो भी पहले हो, केन्द्रीय फिल्म प्रमाणन बोर्ड के हैदराबाद सलाहकार पैनल के सदस्य के रूप में श्री टंकला सुधाकारा राव , एन.एन. कालोनी, कोटटूरू, श्रीकाकुलम , जिला आंध्र प्रदेश-532455 को नियुक्त करती है ।

[फा. सं. 809/1/2007- एफ ( सी) ]

संगीता सिंह, निदेशक (फिल्म) New Delhi , the 11th July,2007

S.O. 2211. In continuation of this Ministry's Notification of even number dated 31st May, 2007 and in exercise of the powers conferred by sub - section ( 1 ) of Section 5 of the Cinematograph Act, 1952 (37 of 1952) read with rules 7 and 8 of the Cinematograph (Certification ) Rules , 1983 , the Central Government is pleased to appoint Shri Tankala Sudhakara Rao, N. N. Colony, Kotturu , Srikakulam District, Andhra Pradesh - 532455 as a member of the Hyderabad advisory panel of the Central Board of Film Certification with immediate effect for a period of two years or until further orders , whichever is earlier .

[F. No. 809/1/2007- F (C)]

SANGEETA SINGH, Director ( Films) नई दिल्ली, 11 जुलाई, 2007

का.आ. 2212.-इस मंत्रालय की दिनांक 29-3-2007 की सम- संख्यक अधिसूचना के अनुक्रम में और चलचित्र (प्रमाणन ) नियमावली, 1983 के नियम 7 और 8 के साथ पठित चलचित्र अधि- नियम , 1952 ( 1952 का 37 ) की धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार , तत्काल प्रभाव से दो वर्षों की अवधि के लिए या अगले आदेशों तक, जो भी पहले हो, केन्द्रीय फिल्म प्रमाणन बोर्ड के चेन्नई सलाहकार पैनल में निम्नलिखित व्यक्तियों को नियुक्त करती है : -

1. श्री सी.एस.एस.एन. अरुण राजा , ओल्ड सं. 31 /न्यूनं. 18, न्यूबंगला स्ट्रीट , चिंताथिरी पेट्टई , चेन्नई-600002 2. श्री सी. आर. भास्करन , 2/1 , जीवनाथम सलाई , वेस्ट के. के. नगर , चेन्नई-600078

[फा. सं. 809/2/2007- एफ ( सी) ] संगीता सिंह, निदेशक (फिल्म) New Delhi , the 11th July, 2007

S.O. 2212. In continuation of this Ministry's Notification ofeven number dated 29-3-2007 and in exercise ofthe powers conferredby sub - section ( 1 ) of Section 5 of the Cinematograph Act , 1952 (37 of 1952) read with rules 7 and 8 of the Cinematograph (Certification) Rules , 1983, the Central Government is pleased to appoint the following persons as members of the Chennai Advisory panel ofthe 5129

भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

संचार और सूचना प्रौद्योगिकी मंत्रालय

(दूरसंचार विभाग )

Central Board of Film Certification with immediate effect for a period of two years or until further orders , whichever is earlier:

(राजभाषा अनुभाग )

नई दिल्ली, 30 जुलाई, 2007 (1 ) Shri C.S.S.N. Arun Raja, Old No. 31/New No. 18, New Bungalow Street , Chintathiri Pettai , Chennai -600002.

(2) Shri C. R. Baskaran , 2/1 , Jeevanantham Salai , West K. K. Nagar , Chennai- 600078 .

[F. No.809/2/2007 - F (C) )

SANGEETA SINGH , Director (Films)

का.आ. 2214.-केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम 1976 ( यथा संशोधित 1987 ) के नियम 10 (4 ) के अनुसरण में संचार और सूचना प्रौद्योगिकी मंत्रालय , दूरसंचार विभाग के प्रशासनिक नियंत्रणाधीन निम्नलिखित कार्यालयों को, जिसमें 80 प्रतिशत से अधिक कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , एतद्वारा अधिसूचित करती है :

नई दिल्ली , 18 जुलाई , 2007

मुख्य महाप्रबंधक दूरसंचार , कर्नाटक परिमण्डल, भा.सं. नि.लि, बेंगलूर

1. महा प्रबंधक दूरसंचार जिला कार्यालय , बिजापुर

2. जिला तार घर , बिजापुर

[सं. ई. 11016/1/2007 ( रा.भा. ) ]

बलराम शर्मा , संयुक्त सचिव (प्रशासन) का.आ. 2213.-इस मंत्रालय की दिनांक 31 मई , 2007 की समसंख्यक अधिसूचना के अनुक्रम में चलचित्र (प्रमाणन ) नियमावली , 1983 के नियम 7 और 8 के साथ पठित चलचित्र अधिनियम , 1952 (1952का 37 ) की धारा 5 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्र सरकार , तत्काल प्रभाव से दो वर्षों की अवधि के लिए या अगले आदेशों तक , जो भी पहले हो , केन्द्रीय फिल्म प्रमाणन बोर्ड के हैदराबाद सलाहकार पैनल में निम्नलिखित व्यक्तियों को नियुक्त करती है :

MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY

(Department of Telecommunications) 1. श्री पी. शरत कुमार , निवासी जयाविला , एच.एम.टी. नगर , नाचारम, हैद्राबाद ।

(O. L, Section)

New Delhi , the 30th July , 2007 2. श्री एस. वेंकटेश्वर रेड्डी म. नं. 3.6.345 , बी-7 , मीरा अपार्टमेंट्स , स्काईलाइन थिएटर के पीछे बशीरबाग , हैदराबाद-500029

[फा. सं. 809/ 1/2007- एफ ( सी) ]

संगीता सिंह, निदेशक ( फिल्म)

NewDelhi , the 18th July, 2007

S.O. 2214.-In pursuance ofrule 10 (4) of the Official Language (Use for official purposes of the Union ), rules , 1976 (as amended, 1987 ) , the Central Government hereby notifies the following Offices under the Administrative Control oftheMinistry of Communications and Information Technology, Department of Telecommunications where more than 80% of staff have acquired working knowledge ofHindi

ChiefGeneralManager Telecom . Karnataka Circle, B.S.N.L. , Bangalore

1. Office of General Manager , Telecom , Distt . , Bijapur.

2. Distt . Telegraph Office, Bijapur .

[No. E. 11016/1/2007 (O.L.) ] S.O. 2213.- In continuation of this Ministry's Notification ofeven number dated 31st May, 2007 and in exercise of the powers conferred by sub - section ( 1 ) of Section 5 of the Cinematograph Act , 1952 (37 of 1952) read withrules 7.and 8 of the Cinematograph ( Certification )Rules , 1983 , the Central Government is pleased to appoint the following as members of the Hyderabad Advisory panel of the Central Board of Film Certification with immediate effect for a period of two years or until further orders , whichever isearlier:

BALRAM SHARMA , Jt. Secy . (Adm.)

रेल मंत्रालय

(1) Shri P. Sarath Kumar , R/ o Jayavilla, HMT Nagar , Nacharam , Hyderabad .

(रेलवे बोर्ड)

नई दिल्ली , 30 जुलाई, 2007 (2) Shri S. Venkateshwar Reddy , H. No. 3-6-345, B-7 , Meera Apartments , Opp. Skyline Theatre , Basheerbagh, Hyderabad- 500029.

[F. No. 809/1/2007-F (C)]

का.आ. 2215.-रेल मंत्रालय ( रेलवे बोर्ड ) , राजभाषा नियम 1976 ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) के नियम 10 के SANGEETA SINGH, Director (Films) 5130

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC, 3( 11 ) ]

मानव संसाधन विकास मंत्रालय

(उच्चतर शिक्षा विभाग )

(राजभाषा प्रभाय )

उपनियम (2 ) और (4 ) के अनुसरण में, दक्षिण-पूर्व रेलवे के चक्रधरपुर मंडल के सहायक मंडल इंजीनियर कार्यालय , चाईबासा तथा क्षेत्रीय प्रबंधक कार्यालय , टाटा नगर को , जहां 80 % से अधिक अधिकारियों/कर्मचारियों ने हिंदी का कार्यसाधक ज्ञान प्राप्त कर लिया है, को एतदद्वारा अधिसूचित करता है ।

नई दिल्ली, 18 जुलाई , 2007

[सं. हिंदी-2007/रा . भा. 1/12/3 ] कृष्णा शर्मा , संयुक्त निदेशक, ( राजभाषा ) MINISTRY OF RAILWAVS

(RailwayBoard)

New Delhi, the 30th July,2007

का.आ. 2217.-केन्द्रीय सरकार शासकीय प्रयोजनों के लिए राजभाषा ( संघ के प्रयाग ) नियम , 1975 के नियम 10 के - नथम 4 के अनुसरण में मानव संसाधन विकास मंत्रालय ( स्कूल शिक्षा और शिक्षा विभाग ) के अन्तर्गत नवोदय विद्यालय समिति के अधीन जवाहर नवोदय विद्यालय गोंईदवाल साहिब , जिला अमृतसर (पंजाब ) को ऐसे कार्यालय के रूप में, जिसके 80 प्रतिशत से अधिक कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , अधिसूचित करती है।

[सं. 11011-7/2005 - रा.भा.ए. ] केशव देसिराजु, संयुक्त सचिव

MINISTRY OF HUMAN RESOURCE DEVELOPMENT

S.O. 2215. Ministry of Railways (Railway Board), in pursuance ofSub Rules (2 ) and (4) of Rule 10 of the Official Languages (Use for the Official purposes of the Union) Rules, 1976 hereby, notify the Office of the Assistant Divisional Engineer, Chaibasa and office of the Area Manager, Tatanagar of Chakradharpur Division of South-Eastern Railway , where 80 % or more Officers / Employees have acquired the working knowledge ofHindi .

(Department of Higher Education) [No.Hindi -2007/O.L.1 /12/3 ] KRISHNA SHARMA, I. Director (O.L. )

(O.L. Division)

New Delhi , the 18th July , 2007

नागर विमानन मंत्रालय नई दिल्ली, 2 अगस्त, 2007

S.O. 2217.-In pursuance of sub rule (4) of Rule 10 of the Official Language ( Use for Official Purposes of the Union) Rules , 1976 , the Central Government hereby notifies the Jawahar Navodaya Vidyalaya , Goindwal Sahib , Distt. Amritsar (Punjab) an office of Navodaya Vidyalaya Samiti under the Ministry of Human Resource Development, (Deptt. of School Education and Literacy) as office, whose more than 80 % members of the Staff have acquired working knowledge of Hindi .

का.आ. 2216.-केन्द्रीय सरकार, राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम, 1976 के नियम 10 के उप- नियम (4 ) के अनुसरण में, नागर विमानन मंत्रालय से संबद्ध नागर विमानन महानिदेशालय के अधीनस्थ कार्यालय , नियंत्रक उड़नयोग्यता काकार्यालय , नागर विमानन विभाग , हैद्राबाद हवाई अड्‌डा, हैदराबाद जिनके 80 प्रतिशत से अधिक कर्मचारीवृन्द ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है, अधिसूचित करती है ।

[सं. ई-11020/6/2006- हिन्दी]

चन्द्रभान नारनौली, निदेशक ( राजभाषा )

[ No. 11011-7/2005 - O.L.U. ] KESHAV DESIRAJU, Jt . Secy.

नई दिल्ली, 18 जुलाई , 2007

MINISTRY OF CIVIL AVIATION NewDelhi, the 2nd August, 2007

S.O. 2216. In pursuance of sub- rule (4) of rule 10 of the Official Language (use of official purpose of the Union) Rules 1976, the Central Government hereby notified of the Controller of Airworthiness, Hyderabad Airport, Hyderabad, subordinate office of the Director General of Civil Aviation, an attached office of Ministry of Civil Aviation.Whereof more than 80 % staff have acquired the working knowledge ofHindi .

का. आ. 2218.-केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उप-नियम 4 के अनुसरण में मानव संसाधन विकास मंत्रालय (उच्चतर शिक्षा विभाग ) के अन्तर्गत नवोदय विद्यालयं समिति के अधीन जवाहर नवोदय विद्यालय , कानकोण , दक्षिण गोवा को , ऐसे कार्यालय के रूप में, जिसके 80 प्रतिशत से अधिक कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , अधिसूचित करती है।

[No.E- 11020/6/2006-Hindi] C. B. NARNAULI, Director (OL)

[सं. 11011-7/2005 - रा.भा.ए. ] केशव देसिराजु , संयुक्त सचिव 5131 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

NewDelhi , the 18th July , 2007

the following further amendments in the First Schedule to the said Act, namely :-

In the said First Schedule after " Gujarat University " and entries thereto " Guru Ghasidas University , Bilaspur , Chhattisgarh " shall be added and against "Guru Ghasidas University , Bilaspur , Chhattisgarh " under the heading 'RecognizedMedical Qualification ' ( hereinafter referredto as column (2) ] , and under the heading "Abbreviation for Registration" (hereinafter referred to as column ( 3 ) ] , the following shall be inserted , namely :-

S.O. 2218.-In pursuance of sub- rule (4) of Rule 10 of the Official Language (Use for Official purposes of the Union) Rules , 1976, the Central Government hereby notifies the Jawahar Navodaya Vidyalaya , Canacona, South Goa under the Navodaya Vidyalaya Samiti , under the Ministry of Human Resource Development, (Deptt. of School Education and Literacy ) as office, whose more than 80 % members of the Staff have acquired working knowledge ofHindi .

(3)

(2)

M.B.B.S.

[No. 11011-7/2005 -O.L.U.J KESHAV DESIRAJU, Jt . Secy .

Bachelor of Medicine andBachelor of Surgery

स्वास्थ्यऔर परिवार कल्याण मंत्रालय (स्वास्थ्यऔर परिवार कल्याण विभाग )

नई दिल्ली, 23 जुलाई , 2007

(This shall be a recognised medical qualification when granted on or after March, 2006 by Guru Ghasidas University inrespect of students of being trained at Chhattisgarh Institute of Medical Sciences , Bilaspur, Chhattisgarh).

[No. U. 12012/72/2000- ME (P - II)] S. K. MISHRA , Under Secy .

का.आ. 2219.- भारतीय आयुर्विज्ञान परिषद् अधिनियम, 1956 (1956 का 102 ) की धारा 11 की उप- धारा ( 2 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार, भारतीय आयुर्विज्ञान परिषद् से परामर्श करने के बाद एतद्वारा उक्त अधिनियम की प्रथम अनुसूची में निम्नलिखित और संशोधन करती है, अर्थात्: -

नई दिल्ली , 30 जुलाई , 2007

का.आ. 2220.- औषध एवं प्रशाधन सामग्री अधिनियम , 1940 ( 1940 का 23 ) की धारा 21 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्र सरकार ने एतद्वारा उक्त अधिनियम के प्रयोजनार्थ:-

1. श्रीमती स्वाति श्रीवास्तव

उक्त प्रथम अनुसूची में " गुजरात विश्वविद्यालय " और उससे संबद्ध प्रविष्टियों के बाद " गुरु घासीराम विश्वविद्यालय , बिलासपुर, छत्तीसगढ़ " जोड़ा जाएगा और " गुरु घासीदास विश्वविद्यालय, बिलासपुर , छत्तीसगढ़ " के सामने, ' मान्यताप्राप्त आयुर्विज्ञान अर्हता ' [ ( इसके बाद स्तंभ ( 2 ) के रूप में संदर्भित ) ] शीर्षक के अन्तर्गत और ' पंजीकरण के लिए संक्षेपण' [ ( इसके बाद स्तंभ ( 3 ) के रूप में संदर्भित ) ] शीर्षक के अन्तर्गत निम्नलिखित रखा जाएगा; अर्थात्:-

2. श्री जयंत कुमार

(3)

3. श्री नरेश शर्मा

(2)

एम.बी.बी.एस.

को समूचे भारत के लिए निरीक्षकों के रूप में नियुक्त किया है। बैचलर ऑफ मेडिसिन एंड बैचलर ऑफ सर्जरी

[ सं. ए. 12015 / 1/2002- डी/डी.एफ.क्यू.सी. ]

आशा थॉमस , निदेशक

New Delhi, the 30th July, 2007 ( यह मान्यताप्राप्त आयुर्विज्ञान, अर्हता होगी जब यह छत्तीसगढ़ आयुर्विज्ञान संस्थान , बिलासपुर, छत्तीसगढ़ में प्रशिक्षित किए जा रहे छात्रों के संबंध में गुरु घासीदास विश्वविद्यालय द्वारा मार्च, 2006 में अथवा उसके बाद प्रदान की गई हो। )

S.O. 2220.- In exercise of the powers conferred by Section 21 of the Drugs and Cosmetic Act , 1940 ( 23 of 1940), the Central Government hereby appoints :-

[सं. यू. 12012/72/2000- एम ई ( पी- II) ]

1. Smt . Swati Srivastava

एस. के. मिश्रा , अवर सचिव

MINISTRY OF HEALTH AND FAMILY WELFARE

2. Shri Jayant Kumar

3. Shri Naresh Sharma

(Departmentof Health and Family Welfare)

New Delhi , the 23rd July, 2007

asInspectors for the purpose of the said Act for the whole ofIndia.

[No. A- 12015/ 1 /2002-D/DFQC]

ASHA THOMAS, Director S.O. 2219. In exercise of the powers conferred 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 5132

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

[PART II-SEC . 3 (ii) ] उपभोक्तामामले , खांद्य और सार्वजनिक वितरण मंत्रालय

( उपभोक्ता मामले विभाग )

नई दिल्ली, 19 मार्च , 2007

का. आ. 2221.- केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विश्वार करने के पश्चात् यह समाधान हो गया है कि उक्तरिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम, 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब, केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स डिवाइस कॉन रिसर्च सेन्टर , बरदोलोई नगर, तिनसुकिया , असम -786 125 द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता वर्ग- III ) " एन ई पी-3 " श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार ) के मॉडल का, जिसके ब्रांड का नाम " स्मार्ट वेट " है (जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/06/ 77 समनुदेशित किया गया है , अनुमोदन प्रमाण-पत्र जारी और प्रकाशित करती है ।

ATFORNMACHINE

PLATI

उक्तमॉडल एक विकृत गेज प्रकार का भार सेल आधारित अस्वचालित तोलन उपकरण है । इसकी अधिकतम क्षमताः 2,000 कि.ग्रा. औरन्यूनतम क्षमता 10 कि.ग्रा. है । सत्यापन मापमान अन्तराल (ई ) का मान 500 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट, 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है ।

स्टांपिंग प्लेट के मुद्रांकन के अतिक्ति मशीन को कपटपूर्ण व्यवहारों के लिए खोलने से रोकने के लिए सीलबन्द भी किया जाएगा और मॉडल को बिक्री से पहले या बाद में उसकी सामग्री , यथार्थता, डिज़ाइन , सर्किट डायग्राम निष्पादन सिद्धांत आदि की शर्तों पर परिवर्तित/परिवर्धित नहीं किया जाएगा ।

और, केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, यह घोषणा करती हैकि उक्त मॉडल के अनुमोदन के इस प्रमाण- पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे अनुमोदित मॉडल का निर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 ग्रा. या उससे अधिक के " ई " मान के लिए 500 से 10,000 तक की रेंज में सत्यापन मान सहित 50 कि.ग्रा. से अधिक और 5000 कि.ग्रा. तक की अधिकतम क्षमता वाले हैं और " ई " मान 1×10 *, 2x10 के या 5 × 10 , के हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं।

[फा. सं. डब्ल्यू एम-21 ( 353 )/2004] आर. माथुरबूथम, निदेशक , विधिक माप विज्ञान 5133 [ भाग II- खण्ड 3( ii ) ]

भारत को राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

MINISTRY OF CONSUMER AFFAIRS , FOOD AND PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

New Delhi , the 19th March , 2007

S.O. 2221. Whereas the Central Government , after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976 ) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore , in exercise of the powers conferred by Sub - sections (7 ) and ( 8 ) of Section 36 of the said Act . the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Platform type ) with digital indication of "NEP- 3 " series of medium accuracy ( accuracy class - III ) and with brand name " SMART WEIGHT " ( herein referred to as the said model ) , manufactured by M/ s . Device Con Research Centre, Bordoloi Nagar , Tinsukia , Assam - 786 125 and which is assigned the approval mark IND/09 / 06/77;

The said model (see the figure given above) is a strain gauge type load cell based weighing instrument with a maximum capacity of 2000 kg . and minimum capacity of 10 kg . The verification scale interval ( e ) is 500 g . It has a tare device with 100 per cent subtractive retained tare effect. The Light Emitting Diode (LED) display indicates the weighing result . The instrument operates on 230 Volts and 50 Hertz alternate current power supply .

Inaddition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices model shall not be changed in terms of its material , accuracy , design , circuit diagram , working principle, etc. before or after sale .

PLATFORMMACHINE

Further , in exercise of the powers conferred by Sub- section ( 12 ) of Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make and performance of same series with maximum capacity above 50kg and up to 5000 kg . with the number ofverification scale interval (n) in the range of 500 to 10,000 for ' e' value of 5g . or more and with ' e' value of the form 1 ×10k , 2x10 or 5x10k , k being a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which, the said approved model has been manufactured .

[F. No. WM- 21 (353 )/2004]

R. MATHURBOOTHAM, Director of Legal Metrology 3287 G1/07-2 5134

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

[PART II-SEC . 3 ( ii) ]

नई दिल्ली , 26 जून , 2007

का. आ. 2222, -केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप- धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स बिजेरबा इंडिया प्राइवेट लि.; 27 एकर, प्रताप कोठारी कम्पाउंड, टिकू जिन्नी वाड़ी , मानपाड़ा , थाणे ( वेस्ट ) -400 607 द्वारा विनिर्मित एक्स- ( 1 ) यथार्थता वर्ग वाले " सी डब्ल्यू एम " श्रृंखला के अंकक सूचन सहित अस्वचालित कैच तोलन उपकरण (चैक वेयर प्रकार ) के मॉडल का, जिसके ब्रांड का नाम " बिजेरबा " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/2007/243 समनुदेशित किया गया है , अनुमोदन प्रमाण-पत्र जारी करती है ।

उक्त मॉडल भार सेल आधारित स्वचालित तोलन उपकरण है । इसकी अधिकतम क्षमता 10 कि.ग्रा. है । अधिकतम आउटपुट 250 पैक्स प्रति मिनट है । बैल्ट की चौड़ाई 20 मि.मी. से 300 मि.मी. है । लिक्विड क्रिस्टल प्रदर्श ( एल सी डी ) तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है ।

स्टांपिंग प्लेट के मुद्रांकन के अतिक्ति मशीन को कपटपूर्ण व्यवहारों के लिए खोलने से रोकने के लिए सीलबन्द भी किया जाएगा और मॉडल को बिक्री से पहले या बाद में उसकी सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम निष्पादन सिद्धांत आदि की शर्तों पर परिवर्तित नहीं किया जाएगा ।

[फा. सं. डब्ल्यू एम-21 (219 )/2006 ]

आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 5135 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खण्ड 3 (ii ) ]

New Delhi , the 26th June, 2007

S.O. 2222. Whereas the Central Government , after considering the report submitted to it by the prescribed authority , is satisfied that the model described in the said report (see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore , in exercise of the powers conferred by Sub- sections (7) and (8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of the Automatic Catch Weighing Instrument (Check Weigher type ) with digital indication of Accuracy class -X( 1 ) and brand " BIZERBA " and series " CWM " ( hereinafter referred to as the said model ) , manufactured by M/s . Bizerba India Private Limited, 27 Acre, Pratap Kothari Compound , Opposite Tiku Jinni Wadi , Manpada, Thane (West )-400 607 , Maharashtra and which isassigned the approval mark IND/09/07/243;

The said model (see the figure given above ) is a load cell based automatic catch weighing instrument with a maximum capacity upto 10 kg. The maximum output is 250 packs per minute . The belt width is 20 mm to 300mm. The Light Crystal Display (LCD ) indicates the weighing result. The instrument operates on 230 Volts and 50 Hertz alternate current power supply.

In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices model shall not be changed in terms of its material , accuracy, design , circuit diagram, working principle, etc.

[F. No. WM- 21 (219)/2006]

R. MATHURBOOTHAM , Director of Legal Metrology 5136

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

[PART II-SEC. 3 ( ii ) )

नई दिल्ली, 20 जुलाई , 2007

का.आ. 2223 केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है किउक्तरिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा ;

अतः, अब, केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स डिवाइस कॉन रिसर्च सेन्टर, बरदोलोई नगर , तिनसुकिया , असम -786 125 द्वारा विनिर्मित यथार्थता वर्ग -2 वाले " एस आर सी यू 100 " श्रृंखला के अंकक सूचन सहित डिस्कंटीन्यूअस टोटलाइजिंग ऑटोमेटिक तोलन उपकरण ( टोटलाइजिंग हॉपर वेयर ) के मॉडल का, जिसके ब्रांड का नाम " स्मार्ट वेंट " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/ 06 / 76 समनुदेशित किया गया है , अनुमोदन प्रमाण पत्र जारी और प्रकाशित करती है ।

Automatic Totalizer

उक्त मॉडल एक विकृति गेज प्रकार का भार सेल आधारित अंकक सूचन सहित टोटलाइजिंग तोलन उपकरण है । अधिकतम संचालित गति पर इसकी अधिकतम क्षमता 1800 कि.ग्रा. प्रति घंटा है । मापमान अन्तराल या परीक्षण सूचक 10 ग्रा. है । तोलन रेंज 1 कि.ग्रा. से 30 कि. ग्रा. है और गति रेंज 30 कि.ग्रा. प्रति मिनट तक है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है।

स्टांपिंग प्लेट के मुद्रांकन के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोलने से रोकने के लिए सीलबन्द भी किया जाएगा और मॉडल को बिक्री से पहले या बाद में उसकी सामग्री , यथार्थता , डिजाइन, सर्किट डायग्राम निष्पादन सिद्धांत आदि की शर्तों पर परिवर्तित/परिवर्धित नहीं किया जाएगा ।

[फा. सं. डब्ल्यू एम-21 ( 353 )/2004]

आर. माथुरबूथम, निदेशक , विधिक माप विज्ञान 5137

भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

New Delhi , the 20th July, 2007

S.Q. 2223. Whereas the Central Government , after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report (see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore, in exercise of the powers conferred by Sub- sections (7 ) and ( 8 ) of Section 36 of the said Act , the Central Government hereby issues and publishes the certificate of approval of the model of the Discontinuous Totalizing Automatic Weighing Instrument (Totalising Hopper Weigher ) with digital indication of Accuracy class - 2 andbrand name " SMART WEIGHT " and series " SRCU 100 " (hereinafter referred to as the said model ) , manufactured by M/ s . Device Con Research Centre , Bordoloi Nagar , Tinsukia , Assam - 786 125 and which is assigned the approval mark IND/09/06/76;

The said model ( see the figure given below) is a load cell based totalizing weighing machine with digital indication. It has a maximum output of 1800 kg per hour at maximum operating speed . The scale interval or test indication is 10g . The weighing range is 1 kg to 30 kg and speed range is up to 30 kg per minute . The Light Emitting Diode (LED) display indicates the weighing result. The instrument operates on 230 Volts and 50 Hertz alternate current power supply.

"Automatic Totaliz

In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy , design , circuit diagram , working principle , etc.

Further, in exercise of the powers conferred by Sub - section ( 12) of the Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make and performance of same series with maximum capacity upto 100 kg manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[F. No. WM - 21 ( 353 )/2004 ]

R. MATHURBOOTHAM . Director of Legal Metrology 5138

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20 , 1929

[PART II-SEC . 3 (ii)]

नई दिल्ली, 20 जुलाई , 2007

का.आ. 2224.- केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स डिवाइस कॉन रिसर्च सेन्टर , बरदोलोई नगर , तिनसुकिया , असम -786 125 द्वारा विनिर्मित उच्च यथार्थता ( यथार्थता वर्ग- II ) " न्यू-2 " श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार के लिए कन्वर्शन किट ) के मॉडल का, जिसके ब्रांड का नाम " स्मार्ट वेट " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/ 09/06/78 समनुदेशित किया गया है, अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक विकृति गेज प्रकार का भार सेल आधारित तोलन उपकरण उपकरण है । इसकी अधिकतम क्षमता 2,000 कि.ग्रा. है और न्यूनतम क्षमता 5 कि.ग्रा. है । सत्यापन मापमान अन्तराल ( ई ) का मान 100 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है ।

स्टांपिंग प्लेट के मुद्रांकन के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोलने से रोकने के लिए सीलबन्द भी किया जाएगा और मॉडल को बिक्री से पहले या बाद में उसकी सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम निष्पादन सिद्धांत आदि की शर्तों पर परिवर्तित/परिवर्धित नहीं किया जाएगा ।

और, केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, यह घोषणा करती है कि उक्त मॉडल केअनुमोदन के इस प्रमाण-पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे अनुमोदित मॉडल का निर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 1 मि.ग्रा. से 50 मि. ग्रा. तक " ई " मान के लिए 100 से 50,000 तक के रेंज में सत्यापन मापमान अंतराल ( एन ) और 100 मि. ग्रा. या उससे अधिक के " ई " मान के लिए 5000 से 50,000 तक की रेंज में सत्यपान मान सहित 50 कि.ग्रा. से अधिक और 5000 कि.ग्रा. तक की अधिक क्षमता वाले हैं और " ई " मान 1 × 10 के , 2 × 10 * या 5×10* , के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं।

[फा. सं. डब्ल्यूएम -21 (353 )/2004]

आर. माथुरबूथम, निदेशक , विधिक माप विज्ञान 5139

भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

[भाग II- खण्ड 3 ( ii ) ]

New Delhi , the 20th July, 2007

S.O. 2224. Whereas the Central Government, after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore , in exercise of the powers conferred by Sub - sections (7) and ( 8 ) of Section 36 of the said Act. the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Conversion kit for Platform type ) with digital indication of "NEW- 2 " series of high accuracy (accuracy class- II) and brand name " SMART WEIGHT" ( herein referred to as the said model ) , manufactured by M/s . Device ConResearch Centre , Bordoloi Nagar , Tinsukia , Assam - 786 125 and which is assigned the approval mark IND/09/ 06/78;

The said model (see the figure given below ) is a strain gauge type load cell based weighing instrument with amaximum capacity of 2000 kg and minimum capacity of 5 kg . The verification scale interval (e) is 100 g. It has a tare device with a 100 per cent subtractive retained tare effect. The Light Emitting Diode (LED) display indicates the weighing result. The instrument operates on 230 Volts and 50 Hertz alternate current power supply.

In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices model shall not be changed in terms of its material , accuracy , design, circuit diagram , working principle, etc. before or after sale.

Further, in exercise of the powers conferredby Sub- section ( 12) of Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make and performance of same series with maximum capacity 50 kg and up to 5000 kg . with number of verification scale interval (n) in the range of 100 to 50,000 for ' e' value of 1 mg to 50 mg . and with verification scale interval (n) in the range of 5,000 to 50,000 for ' e ' value of 100 mg or more and with ' e' value of the form 1x10*, 2×10 * or 5x10k , k being a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured.

[F. No. WM - 21 (353 )/2004]

R. MATHURBOOTHAM , Director of Legal Metrology 5140

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929 .

[PART II-SEC . 3 ( ii ) ]

नई दिल्ली , 20 जुलाई , 2007

का. आ. 2225.- केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः, अब, केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स डिवाइस कॉन रिसर्च सेन्टर, बरदोलोई नगर , तिनसुकिया , असम -786125 द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता वर्ग- III ) " न्यू-3 " श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( वेब्रिज के लिए कन्वर्शन किट ) के मॉडल का, जिसके ब्रांड का नाम " स्मार्ट वेट " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/06 / 79 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

ISRINGE INDICATOR

उक्त मॉडल एक विकृति गेज प्रकार का भार सेल आधारित तोलन उपकरण है । इसकी अधिकतम क्षमता 40,000 कि.ग्रा. है और न्यूनतम क्षमता 200 कि.ग्रा. है । सत्यापन मापमान अन्तराल ( ई ) का मान 10 कि.ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है।

और , केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) प्रदत्त शक्तियों का प्रयोग करते हुए, यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण- पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे अनुमोदित मॉडल का निर्माण किया गया है, विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 कि.ग्रा. या उससे अधिकं के " ई " मान के लिए 500 से 10,000 तक की रेंज में सत्यपान मान सहित 5 टन से 100 टन तक की अधिक क्षमता वाले हैं और " ई " मान 1 × 10 , 2x10 या 5 × 10 % , के हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यूएम-21 (353 )/2004 ] आर. माथुरबूथम , निदेशक, विधिक माप विज्ञान 5141 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खण्ड 3 (ii ) ]

New Delhi , the 20th July , 2007

S.O. 2225. Whereas the Central Government , after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure giverr below) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now , therefore , in exercise of the powers conferred by Sub - sections (7 ) and ( 8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Conversion kit for Weigbridge type) with digital indication of "NEW- 3 series of medium accuracy (accuracy class - III ) and with brand name " SMART WEIGHT " (herein referred to as the said model ) , manufactured by M/ s . Device Con Research Centre , Bordoloi Nagar , Tinsukia, Assam - 786 125 and which is assigned the approval mark IND/09/06/79;

The said model ( see the figure given above ) is a load cell based weighing instrument with a maximum capacity of40000 kg. and minimum capacity of 200 kg . The verification scale interval (e ) is 10 kg . It has a tare device with a 100 per cent subtractive retained tare effect . The Light Emitting Diode ( LED) display indicates the weighing result . The instrument operates on 230 Volts and 50 Hertz alternate current power supply.

In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy, design , circuit diagram, working principle, etc. before or after sale .

Further, in exercise of the powers conferred by Sub- section ( 12 ) of Section 36 of the said Act, the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make and performance of same series with maximum capacity above 5 tonnes and upto 100 tonne with verification scale interval (n) in the range of 500 to 10,000 for ' e' value of 5kg or more and with ' e ' value of the form 1 ×10k , 2x10k br 5 × 10% , k being a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[F. No. WM- 21 (353 )/2004)

R. MATHURBOOTHAM , Director of Legal Metrology 3287 G1/07-3 5142

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929

[PART II-SEC. 3 (ii ) ]

नई दिल्ली , 26 जुलाई, 2007

का. आ. 2226.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है किउक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और भाप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखगा और विभिन्न परिस्थितिथों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स एस. एस. अल्ट्रा हाई- टैक एसोसिएट, एफ -87 , ओखला इंडस्ट्रियल एस्टेट, फेस- III , नई दिल्ली -110020. द्वारा विनिर्मित " 3 एस -01 " श्रृंखला के अंकक सूचन सहित टैक्सी क्रियमा मौहर के मॉडल का , जिसके ब्रांड का नाम " ट्रिनिटी " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन विह आई एम डी/09/06/550 समनुदेशित किी गर्मी है, जनुमीदन प्रमाण - पत्र जारी और प्रकाशित करती है । उक्त मॉडल अंकक सूचन सहित टैक्सी/आटो किराया मीटर है जो समय और दूरी नापने का उपकरण है । यह यात्रा के किसी भी क्षण यात्री द्वारा संदेय प्रचार को निरंतर जोड़ता रहता है और उपदर्शित करता रहता है । यात्रा के दौरान कतिपय विनिर्दिष्ट चाल से ऊपर और विनिर्दिष्ट चाल के नीचे चली गई दूरी के किराए को देय करने का फंक्शन है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) मीटर की रीडिंग उपदर्शित करता है " के" घटक 1680 पल्स/कि.मी. है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 6 वोल्ट प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है।

स्टॉपिंग प्लेट के मुद्रांकन के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोलने से रोकने के लिए सीलबन्द भी किया जाएगा और मॉडल को बिक्री से पहले या बाद में उसकी सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम निष्पादन सिद्धांत आदि की शर्तों पर परिवर्तित नहीं किया जाएगा ।

[फा. सं. डब्ल्यू एम-21 ( 87 ) /2006 ]

आर. माथुरबूथम, निदेशक , विधिक माप विज्ञान 5143 [ भाग II- खण्ड 3( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

New Delhi , the 26th July,2007

S.O. 2226.-Whereas the Central Government, after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 ( 60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore, in exercise of the powers conferred by Sub- sections (7 ) and (8) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of Taximeter with digital indication of " Trinity" as trade name and with series " 3S - 01 " (herein referred to as the said model ) , manufactured by M/s . SS ULTRA Hi - Tech Associates , F- 87, Okhla Industrial Estate , Phase III, New Delhi - 110020 and which is assigned the approval mark IND/09/06/550;

The said model is a digital Auto Fare Meter/Taxi Meter which is a measuring device incorporated with gear system which totalizes continuously and indicate the fare at any moment of journey , the charges payable by the passenger as function of distance traveled below a certain speed and the length of time occupied , independent of the supplementary charges according to the authorized tarrifs . The "K" factor is 1680 pulses per Kilometer.

588 JATRA HITECH ASSOCIATES

The light emitting diode (LED) display indicates the measuring result. The instrument opreates on 6 Volts direct current power supply.

Inaddition to sealing the stamping plate, sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy , design , circuit diagram , working principle , etc. before or after sale .

[F. No. WM- 21 (87)/2006]

R. MATHURBOOTHAM , Director of Legal Metrology [PART II-SEC . 3 (ii) ] 5144

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

नई दिल्ली, 26 जुलाई , 2007

का. आ. 2227.-केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है किउक्त रिपोर्टी में वर्णित मॉडल ( नीचे दी गई आकृति देखें) बाट तथा माप मानक अधिनियम, 1976 ( 1976 का 60 ) औरं बाट तथा माप मानक ( मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब, केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्व सिटिजन स्केल ( आई ) प्रा. लि. , 3 , पुष्पांजली , गठशाला लेन , मलाड ( ईस्ट) , मुंबई -400097 , महाराष्ट्र द्वारा विनिर्मित्त विशेष यथार्थता वर्ग ( यथार्थता वर्ग -1 ) वाले ' सी वाई -204 ' श्रृंखला के अंकक सूचम सहित अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल 'का , जिसके ब्रांड का नाम ' सिटिजन' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/ 144 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक इलैक्ट्रोमेग‌नेटिक फोर्स कम्पेसेसन ( सिंगल ब्लॉक वे सेंसर ) आधारित अस्वचालित तोलन उपकरण ( टेबलटाप प्रकार ) है । इसकी अधिकतम क्षमता 220 ग्राम औरन्यूनतम क्षमता 100 मि. ग्राम है । इसका सत्यापन मापमान अन्तराल 1 मि. ग्रा . है । इसमें एक आधेयतुलन युक्ति है जिसका शप्त प्रतिशत व्यकलनामिक धारित आधेयतुलन प्रभाव है । तरल क्रिस्टल डिस्पले /वेक्यूम फलोरेसेंट डिस्पले तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है।

स्टॉम्पग प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री से पूर्व या उपरांत इसके सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम वर्किंग सिद्धांत आदि के रूप में कोई परिवर्तन न किया जा सके ।

और केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह घोषणा करती है है कि उक्त मॉडल के अनुमोदन के इस प्रमाण पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से , जिससे उक्त अनुमोदित मॉडल का विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 1 मि. ग्रा. या उससे अधिक के " ई " मान के लिए 50,000 या उससे अधिक की रेंज में सत्यापन भापमान अंतराल ( एन ) सहित 50 किलोग्राम तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 × 10 , 2x10 * या 5 × 10 * , के हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं।

[फा. सं. डब्ल्यूएम-21 ( 235 ) /2006 ] आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 5145

भारत का राजपत्र : अगस्त 11, 2007/श्रावण 20 , 1929

[ भाग II- खण्ड 3( ii ) ]

New Delhi, the 26th July , 2007

S.O. 2227. Whereas the Central Government , after considering the report submitted to it by the prescribed authority , is satisfied that the model described in the said report (see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by Sub- sections (7) and (8) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Table top type ) with digital indication of Special accuracy (Accuracy class - I ) of series " CY- 204 " and with brand name " CITIZEN " (hereinafter referred to as the said model ) , manufactured by M/s . Citizen Scale ( 1 ) Pvt . Ltd. , 3, Pushpanjali , Gaushala Lane , Malad (East ) , Mumbai -400 097 , Maharashtra and which is assigned the approval mark IND/09/07/144;

The said model is an electromagnetic force compensation (Single Block Weigh Sensor ) based non - automatic weighing instrument (Table top type ) with a maximum capacity of 220g and minimum capacity of 100 mg. The verification scale interval (e ) is 1 mg. It has a tare device with a 100 per cent subtractive retained tare effect . The Liquid Crystal Display (LFD )/Vacuum Fluorescent Display (VED) indicates the weighing results . The instrument operates on 230 Volts , 50 Hertz alternate current power supply.

In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms , in terms of its material , accuracy , design , circuit diagram , working principle, etc. before or after sale.

Further, in exercise of the powers conferred by Sub- section ( 12 ) of section 36 of the said Act, the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make , accuracy and performance of same series with maximum capacity up to 50kg with verification scale interval (n ) in the range of 50,000 or above for ' e ' value of Img . or more and with ' e ' value of 1 × 10%, 2×10k or 5×10% , where k is a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[F. No. WM- 21 (235 )/2006 ]

R. MATHURBOOTHAM , Director of Legal Metrology 5146

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC . 3( ii) ]

नई दिल्ली, 26 जुलाई , 2007

का. आ. 2228.-केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है किउक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट तथा माप मानक अधिनियम , 1976 ( 1976 का 60 ) और बाट तथा माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः, अर्थ , केन्द्रीय सरकार, संत अधिनियम की धारा 36 की उप - धारा ( 7 ) और ( 8 ) द्वारा प्रदत्त शशक्तियों का प्रयोग करते हुए मैसर्स सिटिजन स्केल (आई) प्रा. लि. , 3. पुष्पांजली , गठशालाग्लेम , मलाड ( ईस्ट) , मुंबई-400097 , महाराष्ट्र द्वारा विनिर्मित विशेष (यथार्थता वर्ग -1 ) वाले ' सी जी-2202 ' श्रृंखला को अंकक सूचन संहित अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल का, जिसके ब्रांड का नाम ' सिटिजन ' है (जिसे इसमें इसके पश्वात् उक्त मॉडल कहां गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/ 145 सममुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक इलैक्ट्रोमेगनेटिक फोर्स कम्पेंसेसन ( सिंगल ब्लॉक वे सेंसर ) आधारित अस्वचालित तोलन उपकरण ( टेबल टाप प्रकार ) है । इसकी अधिकतम क्षमता 2202 ग्राम और न्यूनतम क्षमता 10 ग्राम है । इसका सत्यापन मापमान अन्तराल 10 मि. ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । तरल क्रिस्टल डिस्पले वेक्यूम फलोस्सेंट मिले तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है।

स्टम्पिंग प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री से पूर्व या उपरांत इसके सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम , वर्किंग सिद्धांत आदि के रूप में कोई परिवर्तन न किया जा सके ।

और , केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप - धारा ( 12 ) द्वारा प्रदत्न ि है कि उक्त मॉडल के अनुमोदन के इस प्रमाणपत्र के अंतर्गत उसी विनिर्मा का प्रयोग करते हुए , यह घोषणा करती उक्तअनुमोदित मॉडल का विनिर्माण किया गया है, विनिर्मित्त उसीश्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे द्वारा उसौ सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से , जिससे जो 1 मि. ग्राम या उससे अधिक के " ई " मान के लिए 50,000 या उससे अधिक की रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 किलोग्राम तक की अधिकतम क्षमता वाले हैं और " ई" मान 1x10 , 2x10 * या 5x10*, के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं।

[फा. सं. डब्ल्यूएम-21 (235 )/2006]

आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 5147 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II- खण्ड 3( ii) ]

New Delhi , the 26th July, 2007

S.O. 2228. Whereas the Central Government , after considering the report submitted to it by the prescribed authority , is satisfied that the model described in the said report (see the figure given below) is in conformity with the provisions of the Standards of Weights, and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules, 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by Sub- sections (7) and (8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Table top type ) with digital indication of Special accuracy (Accuracy class - I) of series " CG- 2202 " and with brand name " CITIZEN " ( hereinafter referred to as the said model ) , manufactured by M/ s . Citizen Scale (I) Pvt . Ltd. , 3, Pushpanjali , Gaushala Lane , Malad (East) , Mumbai -400 097, Maharashtra and which is assigned the approval mark IND/09/07/145;

The said model is an electromagnetic force compensation (Single Block Weigh Sensor ) based non- automatic weighing instrument (Table top type) with a maximum capacity of 2202g and minimum capacity of 10g . The verification scale interval (e) is 10 mg. It has a tare device with 100 per cent subtractive retained tare effect . The Liquid Crustal Display ( LCD )/ Vacuum Fluorescent Display (VFD) indicates the weighing results . The instrument operates on 230 Volts, 50 Hertz alternative current power supply. :

In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms , in terms of its material , accuracy, design , circuit diagram , working principle , etc. before or after sale .

Further , in exercise of the powers conferred by Sub- section (12) of section 36 of the said Act, the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make, accuracy and performance of same series with maximum capacity up to 50kg with verification scale interval (n) in the range of 50,000 or above for ' e ' value of Img . or more with 'e' value of 1 × 10k , 2× 10k or 5 × 10k , where k is a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured.

[F. No. WM-21 (235 )/2006]

R. MATHURBOOTHAM , Director of Legal Metrology 5148

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II SEC . 3( ii ) ]

नई दिल्ली , 26 जुलाई , 2007

का. आ. 2229.-केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और भाप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स सिटिजन स्केल ( आई ) प्रा. लि. , 3 , पुष्पांजली , गउशालां लेन , मलाड ( ईस्ट) , मुंबई-400097 , महाराष्ट्र द्वार ' विनिर्मित विशेष यथार्थता वर्ग ( यथार्थता वर्ग -1 ) वाले ' सी एक्स-220 ' श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल का, जिसके ब्रांड का नाम ' सिटिजन ' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/146 समनुदेशित किया गया है , अनुमोदन प्रमाण-पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक इलैक्ट्रोमेगनेटिक फोर्स कम्पंसेसन ( सिंगल ब्लॉक वे सेंसर ) आधारित अस्वचालित तोलन उपकरण ( टेबल टाप प्रकार ) है । इसकी अधिकतम क्षमता 220 ग्राम और न्यूनतम क्षमता 100 मि. ग्राम है । इसका सत्यापन मापमान अन्तराल 1 मि. ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलमात्मक धारित आधेयतुलन प्रभाव है । तरल क्रिस्टल डिस्पले/वेक्यूम फ्लोरेसेंट डिस्पले तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है।

स्टॉम्पिग प्लेट को सील करने के अतिरिक्तमशीन को कन्चटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री से पूर्व या उपरांत इसके सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम वर्किंग सिद्धांत आदि के रूप में कोई परिवर्तन न किया जा सके ।

और , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाणपत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल का निर्माण किया गया है, विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 1 मि. ग्राम या उससे अधिक के " ई " मान के लिए 50,000 या उससे अधिक की रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 किलोग्राम तक की अधिकतम क्षमता वाले हैं और " ई " मान 1× 10 *, 2x10 या 5 × 10 * , ' के ' हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यूएम-21 (235) /2006]

आर. माथुरबूथम, निदेशक , विधिक माप विज्ञान 5149 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20, 1929-

[भाग II- खण्ड 3 ( ii ) ]

New Delhi , the 26th July, 2007

S.O. 2229. Whereas the Central Government , after considering the report submitted to it by the prescribed authority , is satisfied that the model described in the said report (see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore , in exercise of the powers conferred by Sub - sections (7) and (8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Table top type) with digital indication of Special accuracy (Accuracy class - I ) of series " CX- 220 " and with brand name " CITIZEN " ( hereinafter referred to as the said model ) , manufactured by M/s . Citizen Scale (I) Pvt . Ltd. , . 3, Pushpanjali , Gaushala Lane , Malad (East) Mumbai - 400 097 , Maharashtra and which is assigned the approval mark IND/09/07/146;

The said model is an electromagnetic force compensation (Single Block Weigh Sensor ) based non- automatic weighing instrument (Table top Type ) with a maximum capacity of 220g and minimum capacity of 100 mg . The verification scale interval (e ) is 1mg . It has a tare device with 100 per cent subtractive retained tare effect . The Liquid Crystal Display (LCD)/ Vacuum Fluorescent Display VFD) indicates the weighing results . The instrument operates on 230 Volts , 50 Hertz alternate current power supply.

Further, in exercise of the power conferred by sub - section ( 12 ) of section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make, accuracy and performance of same series with maximum capacity up to 50kg . with verification scale interval (n) in the range of 50,000 or above for 'e ' value of 1mg . or more with ' e' value of 1 × 10k , 2× 10k or 5 × 10% , where 'k ' is a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle, design and with the same materials with which , the said approved model has been manufactured.

[F. No. WM- 21 (235 )/2006]

R. MATHURBOOTHAM , Director of Legal Metrology 3287 G1/07-4 5150

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC. 3 (ii) ]

नई दिल्ली , 26 जुलाई , 2007

का. आ. 2230.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्तरिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम, 1976 ( 1976 का 60 ) तथा बाट तथा माप मानक ( मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स सिटिजन स्केल (आई ) प्रा. लि. गाला नं. ४ , स्वागत बिल्डिंग , सागर प्लाजा इण्डस्ट्रियल कॉम्पलैक्स , भोईडपदा , वसई , सतिवली रोड , ( ईस्ट) , ठाणे -401208 , महाराष्ट्र द्वारा विनिर्मित उच्च यथार्थता वर्ग ( यथार्थता वर्ग- II ) वाले ' एस एस एच -92' श्रृंखला के अंकक सूचक सहित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार ) के मॉडल का, जिसके ब्रांड का नाम ' सिटिजन ' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/ 196 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है । उक्त मॉडल एक इलैक्ट्रोमेगनेटिक फोर्स कम्पेंसेसन ( सिंगल ब्लॉक वे सेंसर ) आधारित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार ) है । इसकी अधिकतम क्षमता 50 किलो ग्राम और न्यूनतम क्षमता 50 ग्राम है । इसका सत्यापन मापमान अन्तराल 1 ग्रा.है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । तरल क्रिस्टल डिस्प्ले/वेक्यूम फलोरेसेंट डिस्पले तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रक्षय पर कार्य करता है। स्टांम्पिग प्लोट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री से पूर्व या उपरांत इसके सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम वर्किंग सिद्धांत आदि के रूप में कोई परिवर्तन न किया जा सके ।

और , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाणपत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल का विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 1 मि. ग्राम से 50 मि. ग्राम के " ई " मान के लिए 100 से 1,00,000 तक की रेंज में सत्यापन मापमान अंतराल ( एन ) और 100 मि. ग्राम या उससे अधिक के ई ' मान के लिए 5,000 से 1,00,000 तक की रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 किलोग्राम से 5000 कि. ग्रा. तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 × 10 *, 2x10 * या 5× 10 * , ' के' हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्यहैं ।

[फा. सं. डब्ल्यू एम-21 (235)/2006 ]

आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान [ भाग II- खण्ड 3 (ii ) ]

5151 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

New Delhi , the 26th July , 2007

S.O. 2230. Whereas the Central Government, after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 ( 60. of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by Sub- sections (7) and (8 ) of Section 36 of the said Act , the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Platform type ) with digital indication of High accuracy (Accuracy class-II ) of series " SSH- 92 " and with brand name " CITIZEN" ( hereinafter referred to as the said model ) , manufactured by M/s. Citizen Scale ( I ) Pvt. , Ltd. , GalaNo. 8 , Swagat Building, Sagar Plaza Industrial Complex , Bhoidapada , Vasai . Sativali Road , Vasai (East) Thane- 401208, and which is assigned the approval mark IND/09/07/196;

The said model is an electromagnetic force compensation based non - automatic weighing instrument (Platform type) with a maximum capacity of 50kg and minimum capacity of 50g. The verification scale interval (e ) is 1g. It has a tare device with a 100 per cent subtractive retained tare effect . The Liquid Crystal Display ( LCD )/ Vacuum Fluorescent Display (VFD ) indicates the weighing results . The instrument operates on 230 Volts , 50 Hertz alternate current power supply.

In addition to sealing the stamping plate , sealing shali also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy, design , circuit diagram , working principle, etc.

Further, in exercise of the power conferred by Sub- section ( 12) of Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments. of similar make , accuracy and performance of same series with maximum capacity above 50kg. and up to 5,000 kg . with verification scale interval ( n ) in the range of 100 to 1,00,000 for ' e' value of Img . to 50 mg. and with verification sacale interval ( n) in the range of 5,000 to 1,00,000 for ' e ' value of 100 mg . or more and with ' e ' value of 1 × 10% , 2× 10* or 5x10%, where ' k ' is a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured.

[F. No. WM - 21 ( 235 )/2006]

R. MATHURBOOTHAM , Director of Legal Metrology 5152

[PART II-SEC . 3 ( ii )] THE GAZETTE OF INDIA: AUGUST 11 , 2007/SRAVANA 20 , 1929

नई दिल्ली , 26 जुलाई , 2007

का. आ. 2231.- केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) और बाट तथा माप मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उपधारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स सिटिजन स्केल ( आई ) प्रा. लि, गाला नं. 8 , स्वागत बिल्डिंग , सागर प्लाजा इण्डस्ट्रियल कोम्पलैक्स , भोईडपदा , वसई , सतिवली रोड, 'वर्सइ ( ईस्ट) , ठाणे-401208 , महाराष्ट्र द्वारा विनिर्मित उच्च यथार्थता वर्ग ( यथार्थता वर्ग-1 ) वाले ' एस एस एच -94 ' श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल का , जिसके ब्रांड का नाम ' सिटिजन ' है (जिसे इसमें इसके पश्चात् उक्तमॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/ 195 समनुदेशित किया गया है, अनुमोदन प्रमाण - पत्र जारी और प्रकाशित करती है । उक्तमॉडल एक इलैक्ट्रोमेगनेटिक फोर्स कम्पेंसेसन ( सिंगल ब्लॉक वे सेंसर ) आधारित अस्वचालित तोलन उपकरण ( टेबल टॉप प्रकार ) है । इसकी अधिकतम क्षमता 20 किलो ग्राम और न्यूनतम क्षमता 10 ग्राम है । इसका सत्यापन मापमान अन्तराल 100 मि. ग्रा. है । इसमें एक आधेयकलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । तरल क्रिस्टल डिस्पेल/वेक्यूम फलोरेसेंट डिस्पले तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है। स्टांम्पिय प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री से पूर्व या उपरांत इसके सामग्री, यथार्थता , डिजाइन , सर्किट डायग्राम वर्किंग सिद्धांत आदि के रूप में कोई परिवर्तन न किया जा सके

और , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह घोषणा करती है है कि उक्त मॉडल के अनुमोदन के इस प्रमाणपत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से जिससे उक्त अनुमोदित मॉडल का विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 1 मि. ग्राम या उससे अधिक के " ई " मान के लिए 50,000 या उससे अधिक की रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 किलोग्राम तक की अधिकतम क्षमता वाले हैं और " ई " मान 1x10 , 2x10 या 5 × 10 * , के हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यूएम-21 ( 235 )/2006]

आर. माथुरबूथम , निदेशक, विधिक माप विज्ञान 5153 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

New Delhi , the 26th July , 2007

S.O. 2231.-Whereas the Central Government , after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report (see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by Sub- sections (7) and ( 8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument ( Table top type) with digital indication of Special accuracy (Accuracy class - I ) of series " SSH- 94 " and with brand name " CITIZEN" ( hereinafter referred to as the said model ) , manufactured by M/s . Citizen Scale (I ) Pvt . , Ltd. , Gala No. 8 , Swagat Building, Sagar Plaza Industrial Complex , Bhoidapada, Vasai , Sativali Road , Vasai (East) Thane- 401208, and which is assigned the approval mark IND/09/07/95;

The said model is an electromagnetic force compensation based non- automatic weighing instrument (Table top type) with a maximum capacity of 20kg and minimum capacity of 10g. The verification scale interval (e ) is 100mg. It has a tare device with 100 per cent subtractive retained tare effect. The Liquid Crystal Display ( LCD)/Vaccum Flourescent Display ( VFD) indicates the weighing result. The instrument operates on 230 Volts , 50 Hertz alternative current power supply.

In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy, design , circuit diagram , working principle , etc. before or after sale .

Further , in exercise of the powers conferred by Sub- section ( 12) of Section 36 of the said Act, the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make , accuracy and performance of same series with maximum capacity up to 50kg with verification scale interval ( n) in the range of 50,000 or above for ' e' value of Img. or more with ' e ' value of 1 × 10k , 2x10 or 5× 10% , where k is a positive or nagative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[F. No. WM- 21 (235 )/2006]

R. MATHURBOOTHAM , Director of Legal Metrology [PART II-SEC. 3(ii)] THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

5154

पेट्रोलियम और प्राकृतिक गैस मंत्रालय नई दिल्ली, 30 जुलाई , 2007

का.आ. 2232.-केन्द्रीय सरकार , पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम, 1962 (1962का 50 ) की धारा 2 के खण्ड ( क ) के अनुसरण में भारत सरकार के पेट्रोलियम और प्राकृतिक गैस मंत्रालय की अधिसूचना सं. का. आ. 2980दिनांक 17 नवम्बर , 2004 तथा का.आ. 625 दिनांक 1 मार्च , 2007 का आंशिक अशोधन करते हुए , दिल्ली राष्ट्रीय राजधानी क्षेत्र तथा हरियाणा , उत्तर प्रदेश और राजस्थान राज्यों के राज्य क्षेत्र के भीतर , उक्त अधिनियम के अधीन , मांगल्या (इन्दौर ) से पियाला/बिजवासन तक भारत पेट्रोलियम कॉरपोरेशन लिमिटेड ( बीपीसीएल ) की मुम्बई- मांगल्या पाइपलाइन विस्तार परियोजना के लिए सक्षम प्राधिकारी के कृत्यों का पालन करने के लिए श्रीमति भगवंती जेठवानी, उप महानिरीक्षक , पंजीयन एवं मुद्रांक, कोटा, राजस्थान सरकार, को प्राधिकृत करती है ।

[फाइल सं. आर-31015/8/2004- ओ आर- II ]

ए. गोस्वामी , अवर सचिव MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi , the 30th July, 2007

S.O. 2232. In partial modification of notifications of the Government of India in the Ministry of Petroleum & Natural Gas No. S.O. 2980 dated the 17th November, 2004 and S.O. No. 625 dated the 1st March , 2007 and in pursuance of Clause(a) ofSection 2 of the Petroleum and Minerals Pipelines (Acquisition ofRight of user in Land) Act, 1962 (50 of 1962) the Central Government hereby authorises Smt . Bhagwanti Jethwani , Deputy Inspector General , Stamps and Registration, Kota,Government of Rajasthan on deputation to Bharat Petroleum Corporation Limited ( BPCL) , to perform the functions of theCompetent Authority for BPCL's Mumbai -Manglya Pipeline Extension Project from Manglya (Indore ) to Piyala/Bijwasan, under the said Act, within the territory of NCT of Delhi and States of Haryana, Uttar Pradesh and Rajasthan .

[File No.R-31015/8/2004-OR - II] A. GOSWAMI , Under Secy.

नई दिल्ली , 6 अगस्त, 2007

का.आ. 2233.-केन्द्रीय सरकार , पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम, 1962 (1962का 50 ) की धारा 6 की उपधारा ( 1 ) के अधीन जारी की गई भारत सरकार के पेट्रोलियम और प्राकृतिक गैस मंत्रालय की अधिसूचना संख्या का. आ. और तारीख की नीचे दी गई अनुसूची में यथाहल्लेखित तारीख की अधिसूचना का. आ. संख्या द्वारा उन अधिसूचनाओं से संलग्न अनुसूची में विनिर्दिष्ट भूमि के अधिकार के अर्जन का अधिकार प्राप्त किया था ।

और केन्द्रीय सरकार ने उक्त अधिनियम की धारा 6 की उपधारा ( 4 ) द्वारा प्रदत शक्तियों का प्रयोग करते हुए , उक्त भूमियों में जो सभी विल्लंगमों से मुक्त हैं , उपयोग का अधिकार , इंडियन ऑयल कॉपोरेशन लिमिटेड में निहित किया था ।

और सक्षम प्राधिकारी ने केन्द्रीय सरकार को रिपोर्ट दी हैं कि सिद्धपुर ( गुजरात राज्य ) से सांगानेर ( राजस्थान राज्य ) तक पेट्रोलियम उत्पादों के परिवहन के प्रयोजन के लिए राजस्थान राज्य के अनुसूची में उक्त तहसील फागी , जिला जयपुर तहसील मालपुरा , जिला टोंक तहसील किशनगढ़ , नसीराबाद , पीसांगन, मसूदा, ब्यावर, जिला अजमेर तहसील रायपुर , सोजत , देसुरी , खारची, बाली जिला पाली , तहसील पिण्डवाड़ा, आबूरोड़ जिला सिरोही तहसील के ग्रामों की भूमियों में पाइपलाइन बिछाई जा चुकी हैं । अतः इन भूमियों में प्रचालन की समाप्ति की जाए जिसका संक्षिप्त विवरण इस अधिसूचना की संलग्न अनुसूची में विनिर्दिष्ट किया जाता है ।

अतः अब, केन्द्रीय सरकार, पेट्रोलियम पाइपलाईन ( भूमि में उपयोग के अधिकार का अर्जन ) नियम, 1963 के नियम 4 , के स्पष्टीकरण -1 के अधीन अपेक्षानुसार उक्त अनुसूची के स्तंभ 7 में उल्लिखित तारीख की प्रचालन की समाप्ति की तारीखों के रूप में घोषित करती है ।

अनुसूची

प्रचालन की समाप्ति की तारीख

राज्य

तहसील जिला

ग्राम का नाम

क्र. सं.

की का. आ. सं. एवं दिनांक

धारा 6 ( 1 )

3-6-2005

राजस्थान

फागी जयपुर

1. 2882दिनांक 10-9-02

कँवरपुरा

542दिनांक 13-2-03

543दिनांक 13-2-03

3-6-2005

कैरिया .

2882दिनांक 10-9-02

542दिनांक 13-2-03

543दिनांक 13-2-03 5155

भारत का राजपत्र अंगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II-खण्ड 3 ( ii) ]

3 1

2882 दिनांक 10-9-02

मैंदवास 542दिनांक 13-2-03

543दिनांक 13-2-03

माँदी 2882दिनांक 10-9-02

2882 दिनांक 10-9-02

निमेड़ा 542दिनांक 13-2-03

543दिनांक 13-2-03

2882 दिनांक 10-9-02

रतनपुरा 2.

बरोल 622दिनांक 17-2-03

2617 दिनांक 13-8-02

कुराड़ 622 दिनांक 17-2-03

623दिनांक 17-2-03

2617दिनांक 13-8-02

मलिकपुर 622दिनांक 17-2-03

623दिनांक 17-2-03

2617 दिनांक 13-8-02

किरावल 622दिनांक 17-2-03

623दिनांक 17-2-03

पचेवर 2617 दिनांक 13-8-02

622दिनांक 17-2-03

623दिनांक 17-2-03

2617 दिनांक 13-8-02

स्याह 622दिनांक 17-2-03

623दिनांक 17-2-03

2617 दिनांक 13-8-02

डेठाणी

चांवडिया 2617 दिनांक 13-8-02

2617 दिनांक 13-8-02

अरनिया 622दिनांक 17-2-03

बस्सी 623दिनांक 17-2-03

2617 दिनांक 13-8-02

आंटोली 622दिनांक 17-2-03

623दिनांक 17-2-03

1610 दिनांक 28-5-03

2617 दिनांक 13-8-02

लड़ी 2482दिनांक 24-7-02

ढसूक 774दिनांक6-3-03

2482दिनांक 24-7-02

मंडियावड

खुर्द

राजस्थान

3-6-2005

फागी जयपुर

3-6-2005

टोंक

मालपुरा

3-6-2005

राजस्थान

मालपुरा टोंक

3-6-2005

किशनगढ़ अजमेर

3-6-2005 [PART II-SEC. 3(ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

5156

3-6-2005

राजस्थान

मंडियावंड

अजमेर

किशनगढ़

2482दिनांक24-7-02

कलां

774दिनांक6-3-03

3-6-2005

मोठी

2482दिनाक 24-7-02

3-6-2005

झिरोता

2482दिनांक24-7-02

774दिनांक6-3-03

775दिनांक6-3-03

3-6-2005 2482दिनांक 24-7-02

जोरावरपुरा

3-6-2005

आकोडिया

2482दिनांक 24-7-02

3-6-2005

गोठियाना

2482दिनांक24-7-02

774दिनांक 6-3-03

774दिनांक6-3-03

3-6-2005

नसीराबाद

धोलादांता

2622दिनांक 16-8-02

(देराडू)

3-6-2005 2622दिनांक 16-8-02

बाघसूरी

3-6-2005 2622दिनांक 16-8-02

बुबानिया

3-6-2005

बनेवडा

2622 दिनांक 16-8-02

3-6-2005

मावसिया

2622दिनांक16-8-02

207दिनांक 9-1-03

208 दिनांक 9-1-03

3-6-2005 2622 दिनांक 16-8-02

मोतीपुरा

3-6-2005

रामसर

2622 दिनांक 16-8-02

3-6-2005

सनोद

2622दिनांक 16-8-02

208दिनांक 9-1-03

1735 दिनांक 23-7-04

3-6-2005 2622दिनांक 16-8-02

सूरजपुरा

207 दिनांक 9-1-03

208 दिनांक 9-1-03

3-6-2005 2622दिनांक 16-8-02

धोलादांता (बुबानिया)

3-6-2005 2622दिनांक 16-8-02

देराठू

3-6-2005

चाट

2622दिनांक 16-8-02

3-6-2005 2622दिनांक 16-8-02

जगपुरा

3-6-2005

नेपोली

2622दिनांक16-8-02

3-6-2005 2622दिनांक 16-8-02

अजबा का

बाडिया

राजस्थान

3-6-2005

अन्सरी

नसीराबाद अजमेर

2622दिनांक 16-8-02

पिसांगन

3-6-2005 1589 दिनांक 7-5-02.

रूदलाई

3-6-2005 1589 दिनांक 7-5-02

बिड़कघ्यावास

5157 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

1589 दिनांक 7-5-02

राजस्थान 3-6-2005

नसीराबाद लिसांगन

अजमेर

अमरगढ़

3-6-2005

लीडी

पिसांगन

1589 दिनांक 7-5-02

3-6-2005

3539 दिनांक 8-11-02

3-6-2005

1731 दिनांक 24-5-02

खरवा

मसूदा

1731 दिनांक 24-5-02

3-6-2005

कानाखेड़ा

3-6-2005

1731 दिनांक 24-5-02

केसरपुरा

3-6-2005

1731 दिनांक 24-5-02

नासून

3-6-2005

बाडिया श्यामा

ब्यावर

1594 दिनांक 7-5-02

1741 दिनांक 23-7-04

बाडिया जग्गा

3-6-2005

1594 दिनांक7-5-02

1594 दिनांक 7-5-02

गढी थोरियान

3-6-2005

1594दिनांक 7-5-02

सेंसपुरा

1594 दिनांक 7-5-02

लसाडिया

3-6-2005

1594 दिनांक 7-5-02

3-6-2005

लसानी-1

मान्डावास

3-6-2005

1594 दिनांक 7-5-02

3-6-2005

सुहावा

लाखीना

1594दिनांक 7-5-02

3-6-2005

1594दिनांक 7-5-02

3-6-2005

जालिया-1

1594 दिनांक 7-5-02

3-6-2005

शिवनाथपुरा

1594 दिनांक 7-5-02

3-6-2005

भोजपुरा

1594दिनांक 7-5-02

3-6-2005

केशरपुरा ( परसा)

1594 दिनांक 7-5-02

3-6-2005

नून्दरी -मालदेव

1594 दिनांक 7-5-02

सेदरिया

3-6-2005 .

1594 दिनांक 7-5-02

बलाड

3-6-2005

1587 दिनांक 7-5-02

पाली

3-6-2005

सबलपुरा

रायपुर

1587 दिनांक 7-5-02

धोलिया

3-6-2005

1587 दिनांक 7-5-02

खीवल

3-6-2005

1587 दिनांक 7-5-02

3-6-2005

झालाकी चौकी

1587 दिनांक 7-5-02

बर

3-6-2005

1587 दिनांक 7-5-02

माकडवाली

3-6-2005

1587 दिनांक 7-5-02

3-6-2005

मोहराखुर्द

3-6-2005

1587 दिनांक 7-5-02

मेगडदा

3287 G1/07-5 [PART II-SEC . 3 (ii ) ] 5158

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

3-6-2005 1587 दिनांक 7-5-02

रायपुर- II

दिनांक 23-10-03

3060

3-6-2005 दिनांक 7-5-02

1587

सबलपुरा

3-6-2005 दिनांक7-5-02

सराधना

1587

राजस्थान 3-6-2005

पाली

दिनांक 7-5-02

सेन्दडा

1587

रायपुर

3-6-2005

दीपावास

1587 दिनांक7-5-02

3-6-2005 दिनांक 7-5-02

1587

चाबडियाखुर्द

3-6-2005 दिनांक 7-5-02

फत्ताखेडा

1587

3-6-2005 दिनांक 7-5-02

1587

जेतपुरा

3-6-2005 दिनांक 7-5-02

लवाचा

1587

3-6-2005 9

बगडी

सोजत

1588 दिनांक 7-5-02

3-6-2005 दिनांक 7-5-02

1588

पीपलाद

3061

दिनांक 23-10-03

3-6-2005 1588 दिनांक 7-5-02

केलवाद

3-6-2005 दिनांक 7-5-02

1588

देवली हुल्ला

3-6-2005 दिनांक 7-5-02

1588

सिंगपुरा

3-6-2005 दिनांक 7-5-02

1588

रायरा कलाँ

3-6-2005 दिनांक 7-5-02

बडौद

1593

देसूरी

25-1-2007 दिनांक 21-7-06

2915

दिनांक 7-5-02

3-6-2005 1593

उन्दरथल

3-6-2005 दिनांक 7-5-02

1593

पदमपुरा

3-6-2005 दिनांक 7-5-02

1593

ढालोप

3-6-2005

कोटडी

1593 दिनांक 7-5-02

3-6-2005

नाडोल

1593 दिनांक 7-5-02

3-6-2005 1593 दिनांक 7-5-02

गुढा--केसरसिंह

3-6-2005 1593 दिनांक 7-5-02

जीवन्दखुर्द

3-6-2005 1593 दिनांक 7-5-02

बोरडी

3610 दिनांक 14-11-02

3-6-2005 1593 दिनांक 7-5-02

बोलाकुडा

3-6-2005

घेनडी

1593 दिनांक 7-5-02

3-6-2005

पिलोवनी

1593 दिनांक 7-5-02

3610 दिनांक 14-11-02

3-6-2005

सिवास

1593 दिनांक 7-5-02

3-6-2005 1593 दिनांक 7-5-02

गुढादोलजी

3610 दिनांक 14-11-02

3-6-2005 1593 दिनांक 7-5-02

खिवाड़ा

3-6-2005 11

खारची

1592 दिनांक 7-5-02

देवली

3406 दिनांक 21-10-02 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खण्ड 3 (ii ) ]

4 2

1592 दिनांक 7-5-02

जेतपुरा 1592दिनांक 7-5-02

काढू 1592दिनांक 7-5-02

5159 5

3-6-2005

गुढा केसरसिंह

खारची

3-6-2005

राजस्थान

पाली

जाटियों की

1592दिनांक 7-5-02

ढाणी 1592दिनांक 7-5-02

आंगदोष

रडावास 1592 दिनांक 7-5-02

गादाणा 1592 दिनांक7-5-02

3406 दिनांक 21-10-02

राणावास 1592दिनांक 7-5-02

बडी 1592 दिनांक 7-5-02

गोपावास 1592 दिनांक 7-5-02

1592दिनांक 7-5-02

3-6-2005

निम्बली (मांडा)

मांडा 1592 दिनांक 7-5-02

हमीरवास 1592दिनांक 7-5-02

1592 दिनांक 7-5-02

3-6-2005

राजोला खुर्द

कंटालिया 1592दिनांक 7-5-02

1592दिनांक 7-5-02

बोरनडी 1592दिनांक 7-5-02

गुडांगरी

बाली

नाना 12. 2643 दिनांक 16-8-02

544 दिनांक 13-2-03

2643दिनांक 16-8-02

चामुन्डेरी 545 दिनांक 13-2-03

2643 दिनांक 16-8-02

वीरमपुरा 544. दिनांक 13-2-03

भन्दर 2623 दिनांक 16-8-02

544दिनांक 13-2-03

545दिनांक 13-2-03

2623 दिनांक 16-8-02

कुमटिया 2623 दिनांक 16-8-02

कोठार

बेडा 2623 दिनांक 16-8-02

544दिनांक 13-2-03

2623 दिनांक 16-8-02

भाटून्द 2623 दिनांक 16-8-02

बीजापुर

पादरला 2623 दिनांक 16-8-02

सेवाडी 2623 दिनांक 16-8-02

बारवा 2623 दिनांक 16-8-02

पातावा 2623 दिनांक 16-8-02

2623 दिनांक 16-8-02

लुनावा

3-6-2005

3-6-2005 [PART II-SEC. 3 (ii)] 5160

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

544दिनांक 13-2-03

3-6-2005

सेसली

2623 दिनांक 16-8-02

544 दिनांक 13-2-03

3-6-2005

2623 दिनांक16-8-02

पुनाडिया

3-6-2005

राजस्थान

पाली

बाली

कोट बालियान

2623 दिनांक 16-8-02

3-6-2005

सादलवा

2623 दिनांक 16-8-02

544दिनांक 13-2-03

3-6-2005

टीपरी

2623 दिनांक 16-8-02

3-6-2005

2623 दिनांक 16-8-02

मुण्डारा

3-6-2005

2623 दिनांक 16-8-02

भीटवाड़ा

544 दिनांक 13-2-03

3-6-2005

भारजा

पिण्डवाड़ा सिरोही

2885 दिनांक 10-9-02

546 दिनांक 13-2-03

547 दिनांक 13-2-03

3-6-2005

भीमाना

2885 दिनांक 10-9-02

3-6-2005

वाटेरा

2885 दिनांक 10-9-02

2-2-2007

2913 दिनांक 21-7-06

3-6-2005

भाँवरी

2885 दिनांक 10-9-02

3-6-2005

धनारी

2885 दिनांक 10-9-02

546 दिनांक 13-2-03

3-6-2005

कोदरला

2885 दिनांक 10-9-02

3-6-2005

2885 दिनांक 10-9-02

रामपुरा

547 दिनांक 13-2-03

3-6-2005

बनास

2885 दिनांक 10-9-02

547 दिनांक13-2-03

3-6-2005

घोडियावा

2885 दिनांक 10-9-02

3-6-2005

चवरली

2885 दिनांक 10-9-02

3-6-2005

अजारी

2885 दिनांक10-9-02

546 विनांक 13-2-03

2-2-2007

2913 दिनांक 21-7-06

3-6-2005

पिण्डवाडा

2885 दिनांक 10-9-02

3-6-2005

546 विनांक 13-2-03

3-6-2005

547 विनांक 13-2-03

2-2-2007

2913 दिनांक 21-7-06

3-6-2005

झाडोली

2885 दिनांक 10-9-02

3-6-2005

सादलवा

2885 दिनांक 10-9-02

बाडा

3-6-2005

2885 दिनांक 10-9-02 5161

भारत का राजपत्र अगस्त 11, 2007/ श्रावण 20 , 1929

[ भाग II-खण्ड 3 (ii) ]

3 2

खारा 14 2763 दिनांक 28-8-02

आम्बा 2763 दिनांक 28-8-02

709दिनांक 20-2-03

710दिनांक 20-2-03

2914 दिनांक 21-7-06

चन्द्रावती 2763 दिनांक 28-8-02

709 दिनांक 20-2-03

सियावा 2763 दिनांक 28-8-02

2763दिनांक 28-8-02

सांतपुर 2763 दिनांक 28-8-02

कुई

तरतौली 2763दिनांक 28-8-02

2763दिनांक28-8-02

खडात 710 दिनांक 20-2-03

ओड 2763दिनांक 28-8-02

709दिनांक 20-2-03

मोरथला 2763दिनांक 28-8-02

किवरली 2763 दिनांक 28-8-02

710दिनांक 20-2-03

3-6-2005

राजस्थान

सिरोही

आबू रोड़

3-6-2005

25-1-2007

3-6-2005

3-6-2005.

आबूरोड

3-6-2005

[फा. सं. आर-25011/6/2007-ओ. आर-1 ]

एस. के. चिटकारा , अवर सचिव

New Delhi , the 6th August, 2007

S.O. 2233 Whereas , by the notifications of the Government of India in the ministry of Petroleum and Natural Gas , S.O. Number and date as mentioned in the schedule below issued under sub- section ( 1 ) of section 6 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962) , the Central Government acquired the right of user in the lands specified in the Schedule appended to those notification ;

And whereas , in exercise of the powers conferred by sub - section (4) of section 6 of the said Act , the Central Government vested the right of user in said lands, free from all encumbrances , in the Indian Oil Corporation Limited ;

And whereas , the Competent Authority has made a report to the Central Government that the pipeline for the purpose oftransport of petroleum products from Sidhpur in the state of Gujarat to Sanganer in the State of Rajasthan through the Villages in Tehsil Phagi District JAIPUR, Tehsil Malpura District TONK, Tehsil Kishangarh , Nasirabad, Pisangan , Masuda, Beawar, District AJMER, Tehsil Raipur , Sojat, Desuri , Kharchi , Bali District PALI , Tehsil Pindwara , Abu- Road District SIROHI Tehsil in the State of Rajasthan mentioned in the schedule has been laid in the said lands, so the operation may be terminated in respect of the ROW (Right of Way) in land , description of which in brief is specified in the schedule annexed to this notification .

Now therefore , as required under explanation- I of rule 4 the Petroleum Pipelines (Acquisition of Right of User in Land) rules, 1963 the Central Government hereby declares the dated mentioned in Column 7 of the said Schedule as the dates of termination of operation.

Sl. No.

Name of Village S.O. No. & Date of Under sub-section ( 1) of Section 6

(3)

(2)

(1)

2882Date 10-9-02

State

Tehsil District

Closing date

(7) (5)

(6)

(4)

3-6-2005

Rajasthan

Kanwarpura

542Date 13-2-03

543 Date 13-2-03

Keria 1.

2882Date 10-9-02

Phagi Jaipur

3-6-2005 [PART II-SEC . 3 (ii )] THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

5162

(7)

(6)

(5)

(4)

(3)

(2)

(1)

3-6-2005

Maindwas

2882Date 10-9-02

542Date 13-2-03

543Date 13-2-03

3-6-2005

Mandi

2882Date 10-9-02

3-6-2005

Nimeria

2882Date 10-9-02

542Date 18-2-03

543 Date 13-2-03

3-6-2005

Ratanpura

2882Date 10-9-02

3-6-2005

Barol

Malpura Tonk

622Date 17-2-03

3-6-2005

Kurar

2617 Date 13-8-02

622Date 17-2-03

623 Date 17-2-03

3-6-2005 2617 Date 13-8-02

Malikpur

622Date 17-2-03

623 Date 17-2-03

3-6-2005

Kirawal

2617 Date 13-8-02

622Date 17-2-03

623 Date 17-2-03

3-6-2005

Pachewar

2617 Date 13-8-02

622Date 17-2-03

623Date 7-2-03

3-6-2005

Syah

2617 Date 13-8-02

622Date 17-2-03

623 Date 17-2-03

3-6-2005

Dethani

2617 Date 13-8-02

3-6-2005

Chawandiya

2617 Date 13-8-02

3-6-2005 2617 Date 13-8-02

ArniyaBassi

622Date 17-2-03

623Date 17-2-03

3-6-2005

Antoli

2617 Date 13-8-02

622Date 17-2-03

623Date 17-2-03

1610 Date 28-5-03

3-6-2005

Ladi

2617 Date 13-8-02

3-6-2005

Dhasuk

Ajmer

Kishangarh

2482 Date 24-7-02

774 Date 6-3-03 [ भाग II- खण्ड 3 ( ii ) ]

(1)

(2)

(3) 2482Date24-7-02

5163

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

(5)

(7) (4)

(6)

3-6-2005

Mandiyawar

Khurd 2482 Date 24-7-02

3-6-2005

Mandiyawar

Kala 774Date6-3-03

2482Date 24-7-02

Mothi 2482Date 24-7-02

Zirota 774Date6-3-03

775 Date 6-3-03

2482Date 24-7-02

Kishangarh

Ajmer Rajasthan 3-6-2005

3-6-2005

Jorawarpua

2482Date 24-7-02

Akodiya 2482 Date 24-7-02

3-6-2005

Gothiyana

774 Date 6-3-03

775 Date 6-3-03

2622 Date 16-8-02

Nasirabad

3-6-2005

Dhola Danta

(Derathoo)

2622 Date 16-8-02

Baghsuri 2622Date 16-8-02

Bubaniya 2622 Date 16-8-02

Banewara 2622 Date 16-8-02

3-6-2005

Mawshiya

207 Date 9-1-03

208 Date 9-1-03

2622 Date 16-8-02

Motipura 2622 Date 16-8-02

Ramsar 2622 Date 16-8-02

Sanod 208 Date 9-1-03

1735 Date 23-7-04

2622 Date 16-8-02

Surajpura 207 Date 9-1-03

208 Date 9-1-03

2622 Date 16-8-02

3-6-2005

Dholadanta

(Bubaniya)

2622 Date 16-8-02

Derathoo 2622 Date 16-8-02

Chat 2622 Date 16-8-02

Jagpura 2622 Date 16-8-02

Nepoli 2622Date 16-8-02

Ajba-Ka Bariya 2622 Date 16-8-02

Ansari

3-6-2005

3-6-2005 [PART II-SEC . 3 (ii )] THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

5164

(7)

(6)

(5)

(4)

(3)

(1)

(2)

3-6-2005

Rudlai

Pisangan

1589 Date 7-5-02

3-6-2005 1589 Date 7-5-02

Bidakchiyaw-

3-6-2005 1589 Date 7-5-02

Amargarh

3-6-2005

Leeri

1589 Date 7-5-02

3-6-2005 3539 Date 8-11-02

3-6-2005

Masuda

Kharwa

1731 Date 24-5-02

3-6-2005

Kanakhera

1731 Date 24-5-02

3-6-2005 1731 Date 24-5-02

Kesharpura

3-6-2005

Nasoon

1731 Date 24-5-02

3-6-2005

Beawar

1594 Date 7-5-02

Badiya

1741 Date 23-7-04

Shyama

3-6-2005 1594 Date 7-5-02

Badiya

Jagga

3-6-2005

Garhi

1594 Date 7-5-02

Thoriyan

3-6-2005 1594 Date 7-5-02

Senspura

3-6-2005 1594 Date 7-5-02

Lasariya

Beawar

3-6-2005

Lasani - I

Ajmer Rajasthan

1594 Date 7-5-02

3-6-2005

Mandawas

1594 Date 7-5-02

3-6-2005

Suhawa

1594 Date 7-5-02

3-6-2005

Lakheena

1594 Date 7-5-02

3-6-2005 1594 Date 7-5-02

Jaliya- I

3-6-2005 1594 Date 7-5-02

Shivnathpur-A

3-6-2005 1594 Date 7-5-02

Bhojpura

3-6-2005.

1594 Date 7-5-02

Kesharpura

(Parsa)

3-6-2005 1594 Date 7-5-02

Noondri- Maldeo

3-6-2005 1594 Date 7-5-02

Sedariya

3-6-2005

Balar

1594 Date 7-5-02

3-6-2005

Pali

1587 Date 7-5-02

Sabalpura Raipur

3-6-2005 1587 Date 7-5-02

Dholiya

3-6-2005

Khival

1587 Date 7-5-02

3-6-2005 1587 Date 7-5-02

JhalyaKi-

Chowki

3-6-2005

Bar

1587 Date 7-5-02

3-6-2005

Makarwali

1587 Date 7-5-02

3-6-2005

Mohra-

1587 Date 7-5-02

Khurd

3-6-2005 1587 Date 7-5-02

Megarda 5165

भारत का राजपत्र अगस्त 11, 2007/ श्रावण 20, 1929

[ भाग II- खण्ड 3 ( ii) ]

(4)

(3)

(2)

(1)

1587 Date7-5-02

Raipur- II

3060 Date 23-10-03

1587 Date 7-5-02

Sabalpura

Saradhana 1587 Date 7-5-02

1587 Date 7-5-02

Deepawas 1587 Date 7-5-02

Chawandiya

Khurd

Fatta Khera 1587 Date 7-5-02

1587 Date 7-5-02

Jaitpura

Lawacha 1587 Date 7-5-02

1588 Date 7-5-02

Sojat

Bagri

1588 Date 7-5-02

Piplad

3061 Date 23-10-03

Kelwad

1588 Date 7-5-02

Deolihulla 1588 Date 7-5-02

1588 Date 7-5-02

Singpura 1588 Date 7-5-02

Rayrakala 1593 Date 7-5-02

Barod

Desuri 10.

2915 Date 21-7-06

1593 Date 7-5-02

Undarthal 1593 Date 7-5-02

Padampura 1593 Date 7-5-02

Dhalop

Kotadi

1593 Date 7-5-02

Nadol

1593 Date 7-5-02

Gura Kesar- 1593 Date 7-5-02

Singh

Desuri 1593 Date 7-5-02

Jiwand-

Khurd

Bordi

1593 Date 7-5-02

3610 Date 14-11-02

1593 Date 7-5-02

Bolakura

Ghenri

1593 Date 7-5-02

Pilowani

1593 Date 7-5-02

3610 Date 14-11-02

Siwas

1593 Date 7-5-02

GuruDolji 3610 Date 14-11-02

Khiwara

1593 Date 7-5-02

Kharchi 11.

1592 Date 7-5-02

Deoli

3406 Date 21-10-02

Jetpura

Kadu

1592 Date 7-5-02

1592Date 7-5-02

Gura-

Keshar-

Singh

1592 Date 7-5-02

JatiyonKi-

Dhani

1592 Date 7-5-02

Angdosh

Radawas 1592 Date 7-5-02

3287 G1/07-6

(7)

(6)

(5)

3-6-2005

25-1-2007

3-6-2005

3-6-2005 Pali Rajasthan

3-6-2005

3-6-2005 THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929

5166

(3)

(4) (2)

(1)

Gadana

1592 Date 7-5-02

3406 Date 21-10-02

Ranawas

1592 Date 7-5-02

Bari

1592 Date 7-5-02

Gopawas

Nimbli

1592 Date 7-5-02

(Manda)

Manda

1592 Date 7-5-02

Hameerwas 1592 Date 7-5-02

1592Date 7-5-02

Rajolakhurd 1592 Date 7-5-02

Kantaliya

Bornadi

1592 Date 7-5-02

Gudangari

Nana

Bali 12. 2623 Date 16-8-02

544Date 13-2-03

Chamunderi 2623 Date 16-8-02

545 Date 13-2-03

2623 Date 16-8-02

Virampura 544Date 13-2-03

Bhandar

2623 Date 16-8-02

544Date 13-2-03

545 Date 13-2-03

2623 Date 16-8-02

Kumtiya

Kothar

2623 Date 16-8-02

Bera

2623 Date 16-8-02

544Date 13-2-03

Bhatoond 2623 Date 16-8-02

Pali 2623 Date 16-8-02

Beejapur

2623 Date 16-8-02

Padarla

Sewari

2623 Date 16-8-02

Barwa

2623 Date 16-8-02

Patawa

2623 Date 16-8-02

Bali

Lunawa

2623 Date 16-8-02

544Date 13-2-03

Sesli

2623 Date 16-8-02

544Date 13-2-03

2623 Date 16-8-02

Punadiya

2623 Date 16-8-02

Kotbaliyan

Sadalwa

2623 Date 16-8-02

544Date 13-2-03

2623 Date 16-8-02

Teepri

Mundara

2623 Date 16-8-02

Bheetwara 544Date 13-2-03

13.

Pindwara 2885 Date 10-9-02

Bharja

546Date 13-2-03

547 Date 13-2-03

Bhimana

2885 Date 10-9-02

[PART II-SBC. 3(ii)]

(7) (5)

(6)

3-6-2005

Rajasthan 3-6-2005

3-6-2005

3-6-2005 Sirohi

3-6-2005 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

(4) (2)

(3)

(1)

Vatera

2885 Date 10-9-02

2913 Date 21-7-06

Bhawri

2885 Date 10-9-02

Dhanari 2885 Date 10-9-02

Kodarla 2885 Date 10-9-02

546Date 13-2-03

2885 Date 10-9-02

Rampura 547 Date 13-2-03

Banas

2885 Date 10-9-02

547 Date 13-2-03

2885 Date 10-9-02

Ghodiyawa

Chawarli 2885 Date 10-9-02

546Date 13-2-03

2885 Date 10-9-02

Ajari

2913 Date 21-7-06

Pindwara 2885 Date 10-9-02

546 Date 13-2-03

547 Date 13-2-03

2913 Date 21-7-06

2885 Date 10-9-02

Jhadoli

Sadalwa 2885 Date 10-9-02

Vada

2885 Date 10-9-02

Abu-

Khara

14. 2763 Date 28-8-02

Road

Amba

2763 Date 28-8-02

709 Date 20-2-03

710 Date 20-2-03

2914 Date 21-7-06

Chandrawati 2763 Date 28-8-02

709 Date 20-2-03

2763 Date 28-8-02

Siyawa

Abu- 2763 Date 28-8-02

Santpur

Road 2763 Date 28-8-02

Kui

Tartoli

2763 Date 28-8-02

Khadat 2763 Date 28-8-02

710 Date 20-2-03

Ode

2763 Date 28-8-02

709 Date 20-2-03

Morthala 2763 Date 28-8-02

Kiwarli

2763 Date 28-8-02

710 Date 20-2-03

5167

(7) (6)

(5)

3-6-20005

2-2-2007

3-6-2005

2-2-2007.

3-6-2005

2-2-2007

3-6-2005

25-1-2007

3-6-2005

3-6-2005 Sirohi

3-6-2005

Rajasthan

3-6-2005

3-6-2005 [FileNo. R-25011 /6/2007 -OR - I ) ] S. K. CHITKARA, Under Secy.

[PART II-SEC . 3(ii)] 5168

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

नई दिल्ली , 6 अगस्त, 2007

का.आ. 2234.- केन्द्रीय सरकार ने पेट्रोलियम और प्राकृतिक गैस मंत्रालय के का. आ. 924 दिनांक 29 मार्च 2007 द्वारा पेट्रोलियम और खनिज पाइपलाइन्स ( भुमि में उपयोग के अधिकार का अर्जन ) अधिनियम, 1962 (1962 का 50 ) की धारा 3 की उप- धारा (1 ) के अधीन अधिसुचना प्रकाशित कर , पारादीप - हल्दिया पाइपलाइन परियोजना हेतु कच्चे तेल परिवहन करने के प्रयोजन के लिये उड़ीसा राज्य के पारादीप से पश्चिम बंगाल राज्य के हल्दिया तक पाइपलाइन बिछाने हेतु संलग्न अनुसूची में विनिर्दिष्ट जिलाः भद्रक, उड़ीसा की भुमि में उपयोग के अधिकार के अर्जन के अपने आशय की घोषणा की थी ।

और उक्त राजपत्र दी गई थी। अधिसुचना की प्रतियों जनता को ता.07.06.2007 को उपलब्ध करा और उक्त अधिनियम की धारा 6 की उप- धारा (1 ) के अनुसरण में सक्षम प्राधिकारी ने केन्द्रीय सरकार को अपनी रिपोर्ट दे दी है।

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात , और यह समाधान हो जाने पर कि उक्त भुमि पाइपलाइन बिछाने के लिए अपेक्षित है , और सभी उपयोग का अधिकार अर्जित करने का विनिश्चय किया है ।

अतः अब केन्द्रीय सरकार ने उक्त अधिनियम की धारा 6 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुये, घोषणा करती है कि इस अधिसुचना से संबन्ध अनुसूची में विनिर्दिष्ट भुमि में उपयोग का अधिकार पाइपलाइन बिछाए जाने हेतु अर्जित किया जाता है ।

और केन्द्रीय सरकार , उक्त अधिनियम की धारा 6 की उप - धारा (4) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुये यह निर्देश देती है की उक्त भुमि में उपयोग का अधिकार इस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने की बजाय सभी विल्लंगमों से मुक्त हो कर इंडियन ऑयल कॉरपोरेशन लिमिटेड में निहित होगा 5169 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रवण 20 , 1929

अनुसूची

राज्य : उड़िसा जिल्हा : भद्रक

क्षेत्रफल

खसरा संख्या

गाँव का नाम

तहसील का नाम

वर्ग मीटर

हेक्टेयर एयर

297

चान्दबाली

कान्ड़ीआसाही

1054

307

309

291

342

डिओबिल

376

मुल्काईमा

372

373

534

525

790

- 02

528

1899

सानसिंगपुर

146

बरासीगपुर

3132

माधापुर

3123

3126

3107.

3133

3124

1736

38 घाटपुर

5000

2114

2516

2515

01 5170

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929

4767

4753

3217

3129

3003

2800

2514

2529

2427

2124

1918

1921

265

1144/1767

सान्तरापुर

1671

1669

194 तिहीडी

भानूपुर

412

कान्हूपुर

404

358

सम्डकपुर

1194

कबीरपुर

1115

527

जाफराबाद

526

513

483

482

327

479

521

268

नहुनीपाल

263

266

262

234

162

[PART II-SEC. 3 ( ii) ] 4

61 [भाग II-खण्ड 3 ( ii ) ]

5171

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

168

167

166

264

39 बासुदेबपुर

1643

बागदाबिनायकपुर

140

साबरपुर

18 सुगुडा

695

55 गुआगन

910

18 सुआन

1655

1570

82 अरतुगं

132

122

[फा. सं. आर-25011/11/2004- ओ.आर. - 1 ]

एस. के. चिटकारा , अवर सचिव New Delhi , the 6th August, 2007.

S. O. 2234. Whereas by the notification of the Government of India in the Ministry of Petroleum and Natural Gas , published in the Gazette of India vide S.O No. 924 dated 29.03.2007 issued under sub-section ( 1 ) of section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land ) Act'1962 (50 of 1962) the Central Government declared its intention to acquire the right of user in the land specified in the schedule appended to that notification for the purpose of laying pipeline for the transportation of Crude Oil from Paradip in the State of Orissa to Haldia in the State of West Bengal by the Indian Oil Corporation Limited for its Paradip - Haldia Crude Oil Pipeline Project .

And whereas , copies of the said notification were made available to the general public on 07.06.2007.

And whereas, the Competent Authority has under sub- section ( 1 ) of section 6 of the said Act, submitted his report to the Central Government .

Andwhereas the Central Government after considering the said report is satisfied , that, the right of user in the land specified in the Schedule appended to this Notification should be acquired.

Now, therefore in exercise of the powers conferred by sub-section ( 1 ) of section 6 of the said Act , the Central Government hereby declares that the right of user in the land specified in the Schedule appended to this notification is hereby acquired for laying the pipeline .

And further, in exercise of the powers conferred by sub - section (4) of section 6, Central Government hereby directs the right of user in the said land shall instead of vesting in the Central Government vest , on the date of publication of this declaration , in the Indian Oil Corporation Limited free from all encumbrances.

5172

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC. 3 ( ii) ]

Schedule

District: Bhadrak

Khasra No. Nameof Tehsil Name of Village

Kandiasahi

297 Chandbali

1054

307

309

291

342

Deobil

376

Mulkaema

372

373

534

525

790

528

1899

Sansingpur

146

Barasingpur

3132

Madhapur

3123

3126

3107

3133

3124

1736

Ghatpur

5000

2114

2516

2515

4767 State: Orissa

Area

Hectare Are Sq.mtr.

45 00

02 00

43 00

35 00

20 00

50 00

92 00

93 00

58 00

22 00

80 00

.00 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20 , 1929

4753

3217

3129

3003

2800

2514

2529

2427

2124

1918

1921

265

Santarapur

5173 4

6 00

64 00

06 00

72 00

77 00

76 00

78 00

72 00

37 00

1144/1767

1671

1669 Tihidi

Bhanupur

194

412

Kanhupur

404

358

Sandakpur

1194

Kabirpur

1115

Jafrabad

527

526

513

483

482

327

479

521

268

Nahunipal

263

266

262 3287 Gl/07-7

29 00

45. 00

79 00

44 00

00 00

80 00

86 00

38 00

57 00

15 00

89 00

39 00

25 00

48 00

80 00

85 00

03 5174

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929

234

162

168

167

166

264

1643

Bagdabinayakpur

Basudevpur

140

Sabarpur

695

Sungura

910

Guagan

Suan

1655

1570

132

Artung

122

[PART II-SEC. 3 ( ii) ]

6 4

05 00

10 00

71 00

18 00

55 00

18 00

70 00

[ F. No. R-25011 / 11 /2004- O.R. -1 ] S.K. CHITKARA , Under Secy.

नई दिल्ली, 6 अगस्त, 2007

कम.आ. 2235.- केन्द्रीय सरकार ने पेट्रोलियम और प्राकृतिक गैस मंत्रालय के का. अस. 922 दिनांक 29 मार्च 2007 द्वारा पेट्रोलियम और खनिज पाइपलाइन्स ( भुमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 (1962 का 50 ) की धारा 3 की उप- धारा ( 1 ) के अधीन अधिसुचना प्रकाशित कर , पारादीप - हल्दिया पाइपलाइन परियोजना हेतु कच्चे तेल परिवहन करने के प्रयोजन के लिये उड़ीसा राज्य के पारादीप से पश्चिम बंगाल राज्य के हल्दिया तक पाइपलाइन बिछाने हेतु संलग्न अनुसूची में विनिर्दिष्ट जिलाः केंद्रपाड़ा, उड़ीसा की भुमि में उपयोग के अधिकार के अर्जन के अपने आशय की घोषणा की थी ।

और उक्त राजपत्र दी गई थी। अधिसुचना की प्रत्तियों जनता को ता.05.06.2007 को उपलब्ध करा

और उक्त अधिनियम की धारा 6 की उप - धारा (4 ) के अनुसरण में सक्षम प्राधिकारी ने केन्द्रीय सरकार को अपनी रिपोर्ट दे दी है।

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात , और यह समाधान हो जाने पर कि उक्त भुमि पाइपलाइन बिछाने के लिए अपेक्षित है, और सभी उपयोग का अधिकार अर्जित करने का विनिश्चय किया है । [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

5175 अतः अब केन्द्रीय सरकार ने उक्त अधिनियम की धारा 6 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुये , घोषणा करती है कि इस अधिसुचना से संबन्ध अनुसूची में विनिर्दिष्ट भुमि में उपयोग का अधिकार पाइपलाइन बिछाए जाने हेतु अर्जित किया जाता है ।

और केन्द्रीय सरकार, उक्त अधिनियम की धारा 6 की उप - धारा (4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुये यह निर्देश देती है की उक्त भुमि में उपयोग का अधिकार इस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने की बजाय सभी विल्लंगमों से मुक्त हो कर इंडियन ऑयल कॉरपोरेशन लिमिटेड में निहित होगा।

अनुसूची जिल्हा : केद्रपाडा

तहसील का नाम गाँव का नाम खसरा संख्या 1

3 महाकालपाडा

763

मलाडीहि

762

बरडंग

497

1425

508

528

529

496

खोलानई

235

बंधपाडा

52/367

407

बाटिपाडा

पटामुन्डाई

761

सतकुडिया

चेडिया

566

101

बुहाळ

798

459

462

463

439 राज्य : उड़िसा

क्षेत्रफल

हेक्टेयर एयर वर्ग मीटर 4

66 5176

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

[PART II-SEC. 3( ii) ]

99 बन्तो

1271

71 अन्धारूआ

1580

मालीपुर

1588

2436

डामस्पुर

2424

2683

पालपाटना

399

औल

अलिहा

704

857

2387

मोहासानी

1247/2765

2580

2414

1215

1138

990

1226/2771

2415

2517

2514

2417

2402

2572

2570

2885

2925

2224

1249

1227

1140

1216

532

चन्डियागड़ी

शितलेश्वर

795

05 [ भाग II- खण्ड 3 ( ii ) ]

5177

भारत का राजपत्र : अगस्त 11 , 2007/ श्राषण 20, 1929

08 नियाल

1459

2456

99 तुन्गा

1846

1864

1410

1371

1710

1711

1712

1723

1081

906

647

1448

1449/1537

646

[फा. सं. आर-25011/12/2004-ओ.आर. - 1 ]

एस. के. चिटकारा , अवर सचिव

New Delhi , the 6th August , 2007

S. O. 2235.- Whereas by the notification of the Government of India in the Ministry of Petroleum and Natural Gas , published in the Gazette of India vide S.O. No. 922 dated 29.03.2007 issued under sub-section ( 1 ) of section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act'1962 (50 of. 1962) the Central Government declared its intention to acquire the right of user in the land specified in the schedule appended to that notification for the purpose of laying pipeline for the transportation of Crude Oil from Paradip in the State of Orissa to Haldia in the State of West Bengal by the Indian Oil Corporation Limited for its Paradip- Haldia Crude Oil Pipeline Project .

And whereas , copies of the said notification were made available to the general public on 05.06.2007.

And whereas , the Competent Authority has under sub- section ( 1 ) of section 6 of the said Act , submitted his report to the Central Government.

And whereas the Central Government after considering the said report is satisfied , that, the right of user in the land specified in the Schedule appended to this Notifications should be acquired .

5178

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC. 3( ii)] Now, therefore in exercise of the powers conferredby sub - section ( 1 ) of section 6 ofthe said Act , the Central Government hereby declares that the right of user in theland specified in the Schedule appended to this notification is hereby acquired for laying the pipeline.

And further, in exercise of the powers conferred by sub- section (4) of section 6 , Central Government herebydirects the right of user in the said land shall instead of vesting in the Central Government vest, on the date of publication of this declaration , in the Indian Oil Corporation Limited free from all encumbrances .

Schedule

District: Kendrapara

Khasra No.

Name of Village

Name of Tehsil

763

Maladihi

Mahakalpada

762

497

Baradang

1425

508

528

529

496

235

Kholanai

52/367

Bandhapara

407.

Batipara

Pattamunda

761

Satkudia

566

Chadeya

101

Buhal

798

459

462

463

439 State: Orissa

Area

Are

Hectare

Sq.mtr.

54 00

00 .

42 00

79 00

00 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11, 2007/ श्रावण 20 , 1929

5179

6 Banto

000

1271

26 Andharua

1580

Malipur

1588

37 Damarpur

2436

2424

18 Palpatna

2683

25 Aul

Aliha

399

704

857

68 Mahasani

2387

1247/2765

2580

2414

1215

1138

990

1226/2771

2415

2517

2514

2417

06.

2402

2572

2570

2885

2925

2224

1249

1227

02 5180

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929

1140

1216

532

Chandiagadi

Sitleswar

795

Nial

1459

2456

1846

Tunga

1864

1410

1371

1710

1711

1712

1723

1081

906

647

1448

[PART II-SEC. 3 (ii) ]

6 4

03 00

99 00

61 00

60 00

65 00

81 00

1449/1537

646

[ F. No. R-25011 /12/2004-O.R. -I ] S.K. CHITKARA, Under Secy .

नई दिल्ली , 6 अगस्त, 2007

का.आ. 2236.- केन्द्रीय सरकार ने पेट्रोलियम और प्राकृतिक गैस मंत्रालय के का. आ. 925 दिनांक 29 मार्च 2007 द्वारा पेट्रोलियम और खनिज पाइपलाइन्स ( भुमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) की धारा 3 की उप- धारा ( 1 ) के अधीन अधिसुचना प्रकाशित कर, पारादीप - हल्दिया पाइपलाइन परियोजना हेतु कच्चे तेल परिवहन करने के प्रयोजन के लिये उड़ीसा राज्य के पारादीप से पश्चिम बंगाल राज्य के हल्दिया तक पाइपलाइन बिछाने हेतु संलग्न अनुसूची में विनिर्दिष्ट तहसिलः राजकनिका, जिलाः केंद्रपाड़ा, उड़ीसा की भुमि में उपयोग के अधिकार के अर्जन के अपने आशय की घोषणा की थी ।

और उक्त राजपत्र अधिसुचना की प्रतियाँ जनता को ता.06.06.2007 को उपलब्ध करा दी गई थी। [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11, 2007/श्रावण 20, 1929

5181 और उक्त अधिनियम की धारा 6 की उप - धारा (1 ) के अनुसरण में सक्षम प्राधिकारी ने केन्द्रीय सरकार को अपनी रिपोर्ट दे दी है।

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात , और यह समाधान हो जाने पर कि उक्त भुमि पाइपलाइन बिछाने के लिए अपेक्षित है, और सभी उपयोग का अधिकार अर्जित करने का विनिश्चय किया है ।

और केन्द्रीय सरकार , उक्त अधिनियम की धारा 6 की उप - धारा ( 4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुये यह निर्देश देती है की उक्त भुमि में उपयोग का अधिकार इस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने की बजाय सभी विल्लंगमों से मुक्त हो कर इंडियन ऑयल कॉरपोरेशन लिमिटेड में निहित होगा।

अनुसूची

जिल्हा : केद्रपाडा

राज्य : उड़िसा

क्षेत्रफल

तहसील का नाम गाँव का नाम खसरा संख्या

हेक्टेयर

एयर वर्ग मीटर 1

राजकनिका

2157

परिनुआपाडा

2096

2099

2097

2098

2090

2089

2082

2083

2085

2694

2086

2029

2030

3287 G1/07-8 THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20 , 1929 5182

2684

2031

2032

2033

2020

2021

2017

2019

2607

2018

2006

2014

2007

2005

2000

1999

2653

1998

1994

1982

1993

1983

1767

1765

1760

1757

1758

1761

1755

1754

2600

1759

1753

1388

1389

1390

1393

1431

1520 [PART II-SBC. 3 (ii) ]

'62

00 [भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/ श्रवण 20 , 1929 1

1521

00.

1522

1526

1527

1529

1517

1392

1387

382

353

355

354

356

352

351

349

368

369

247

248

246

222

2465

221

215

257

214

216

217

210

207

206

5183 5

45 THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA20, 1929 5184

109

608

मिर्जापुर

613

611

1117

604

603

615

600

599

1037

596

594

595

1031

563 [PART II-SBC. 3(ii)]

04 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929 1

565

566

558

1046

550

556

551

552

553

1055

366

365

362

347

349

350

1068

1067

247

248

249

1064

253

231

1038

234

232

233

1062

221

5185 5

70.

00 THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929 5186

203

206

204

205

168

167

169

171

170

172

147

145

148

150

149

151

142

141

1076

1073

1097

20 [PART II-SBC. 3( ii) ]

54 [ भाग II- खण्ड 3( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929

कोथापाही

177

176

175

168

312

266

167

166

165

147

269

132

00 .

141

281

123

122

120

119

118

117

5187 .

68 5188

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

493

बालीबन्धा

494

535

489

495

717

478

477

481

473

471

472

466

469

450

455

456

458

714

435

440

441

439

1343

आगापाड़ा

1344 [PART II-SEC. 3( ii) ]

01 5189 भारत का राजपत्र : अगस्त 11, 2007/ श्रवण 20, 1929

[भाग II-खण्ड 3( ii ) ]

1341

1339

1342

1209

1227

1229

1228

1336

1230

1237

1238

1240

1246

1245

1244

1303

1309

1310

1311

1317

1319

1898

पेगरपाड़ा

1897

1895

1894

1229

1226

1225

1237

1212

3287 GI/07-9 5190

THE GAZETTE OF INDIA: AUGUST 11 , 2007/SRAVANA 20, 1929

1211

2143

1213

1210

1214

652

608

609

611

610

612

613

430

634

651

650

655

656

657

658

515

661.

660.

676

514

512

511

508

501

500

[PART II-SEC. 3( ii) ] 5

14.

47 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20, 1929

3 1

509

499

689

2187

690

707

706

708

709.

712

710

711

821

820

822

819

818

815

814

813

810

806

809

807

808

2237

789

788

787

161

नाहुनी

5191 5

02 5192

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

160

159

150

126

124

135

120

पन्की

3328

3242

3238

3239

3240

3235

3234

3233

3232

3231-

3230

3229

00 [PART II-SBC. 3(ii) ] 5

64 भारत का राजपत्र अगस्त 11.2007/श्रावण 20, 1929 [भाग II- खण्ड 3 ( ii ) ]

3228

3314

3227

2857

3059

2850

2858

2863

2864

2866

3657

2867

2868

2869

2870

2865

2792

2876

2791

2783

2782

2775

2883

2886

2887

2909

2904

2651

1421

1422

5193 5

15 5194

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

1420

1419

3775

1425

1418

1426

1436

1376

1377

1378

1379

1380

1381

1383

1382

1330

1329

1328

3352

1335

3599

3598

1339

1297

1296

1285

1295

1283

1286

00 .

1287

00 [PART II-SEC. 3(ii) ] 5

00 [भाग II- खण्ड 3 ( ii ) ]

5195

भारत का राजपंत्र : अगस्त 11 , 2007/ श्रावण 20, 1929

1288

1289

1284

1254

1252

1251

1250

1534

1535

1536

1538

1540

1544

1547

1545

1546

2513

1626

1622

1613

1623

3520

1387

1950

[फा. सं. आर-25011/12/2004-ओ.आर. - 1]

एस. के. चिटकारा , अवर सचिव 5196

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20,1929

[PART II SBC. 3(ii) ]

New Delhi , the 6th August, 2007

$. O. 2236.-Whereas by the notification of the Government of India in the Ministry of Petroleum and Natural Gas , published in the Gazette of India vide S.O. No. 925 dated 29.03.2007 issued under sub- section ( 1 ) of section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land ) Act 1962 (50 of 1962) the Central Government declared its intention to acquire the right of user in the land in Tahasil - Rajkonika , Dist - Kendrapara , Orissa state specified in theschedule appended to that notification for the purpose of laying pipeline for the transportation of Crude Oil from Paradip in the State of Orissa to Haldia in the State of West Bengal by the Indian Oil Corporation Limited for its Paradip- Haldia Crude Oil Pipeline Project.

Andwhereas , copies of the said notification were made available to the general public on 06.06.2007.

And whereas , the Competent Authority has under sub - section ( 1 ) of section 6 of the said Act, submitted his report to the Central Government.

Andwhereas the Central Government after considering the said report is satisfied , that, the right of user in the land specified in the. Schedule appended to this Notifications should be acquired .

Now, therefore in exercise of the powers conferred by sub - section ( 1 ) of section 6 of the said Act , the Central Government hereby declares that the right of user in the land specified in the Schedule appended to this notification is hereby acquired for laying the pipeline.

And further, in exercise of the powers conferredby sub- section (4) of section 6, Central Government hereby directs the right of user in the said land shall instead of vesting in the Central Governmerit vest , on the date of publication of this declaration , in the Indian Oil Corporation Limited free from all encumbrances .

5197 भारत का राजपत्र : अगस्त 11, 2007/ श्रवण 20, 1929

[ भाग II- खण्ड 3 ( ii ) ]

Schedule

State: Orissa

District: Kendrapara

Area

Khasra No.

Nameof Village

Name of Tehsil

Are Sq.mtr.

Hectare

2157

Parinuapada

Rajkonjka

2096

2099

2097

2098

2090

2089

2082

76.

2083

2085

2694

2086

2029

2030

2684

2031

2032

2033

2020

2021

2017

2019

2607

2018

2006

2014

2007

2005

2000

3287 GI/07-10 5198

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA20, 1929

1999

2653

1998

1994

1982

1993

1983

1767

1765

1760

1757

1758

1761

1755

1754

2600

1759

1753

1388

1389

1390

1393

1431

1520

1521

1522

1526

1527

1529

1517

1392

1387

382

353

00 [PART II SEC. 3 ( ii) ] 5

00 [भाग II--खण्ड 36ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/ आषण 20 , 1929

355

354

356

352

351

349

368

369

247

248

246

222

2465

221

215

257

214

216

217

210

207

206

109

5199

42. 07

-90

02 5200

THE GAZETTE OF INDIA: AUGUST 11 , 2007/SRAVANA 20, 1929

608 Mirajpur

613

611

1117

604

603

615

600

599

1037

596

594

595

1031

563

565

566

558

1046

550

556

551

552

553

1055

366 [PART II-SEC. 3( ii ) ]

01 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्राषण 20 , 1929

365

362

347

349

350

1068

1067

247

248

249

1064

253

00,

231

1038

234

232

233

1062

221

203

206

204

205

168

167

169

171

170

172

147

145

148

150

149

5201

00 THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 5202

151

142

141

1076

1073

1097

177 Kothapahi

176

175

168

312

266

167

166

165

147

269

132

141

281

123

122

120 [PART II-SEC. 3(ii) ]

48 04

02 07

75 01

50 12

10 01

83 01

25 03

93 02

80 00

45 12

90 27

04 01

00 02

85 05

10 00

32 08

56 11 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929 1

119

118

117

79 Balibhanda

493

494

535

489

495

717

478

477

481

473

471

472

466

469

450

455

456

458

714

435.

440

5203 5

10 THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929 5204

() ()

441

439

1343 Agapada

1344

1341

1339

1342

1209

1227

1229

1228

1336

1230

1237

1238

1240

1246

1245

1244

1303

1309

1310

1311

1317

1319

1898

Pegarpada

1897

1895

1894

1229

1226 [PART I-SEC. 3(ii)]

10 00

72 04

51 09

97 08

88 00

48 06

30 04

64 03

50 01

85 03

90 00

82 05

99 03

54 02

05 04

10 00

23 00

55 05

50 08

62 09 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11. 2007/ श्रावण 20 , 1929 1

1225

1237

1212

( ) ( )

1211

2143

1213

1210

1214

652

608

609

611

610

612

613

430

634

651

650

655

656

657

658

515

661

660

676

514

512

511

508

501

500

509

00 3287 GI/07-11

5205 5

04.

12 5206

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA20, 1929

499

689

2187

690

707

706

708

709

712

710

711

821

820

822

819

818

815

814.

813

810

806

809

807

808

2237

789

788

787

161

Nahuni

160

159

150

126

124 [PART II-SEC. 3(ii ) ]

23 04

83 13

65 02

36 02

05 12

09 01

43 06

87 15 [भाग II- खण्ड 3 ( ii ) ]

5207

भारत का राजपत्र अगस्त 11. 2007/श्रावण 20, 1929

135

120

00 Panki

3328

3242

3238

3239

3240

3235

3234

3233

3232

3231

3230

3229

3228

3314

3227

2857

3059

2850

2858

2863

2864

00 5

49 26

80 5208

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20 , 1929

2866

3657

2867

2868

2869

2870

2865

2792

2876

2791

2783

2782

2775

2883

2886

2887

2909

2904

2651

1421

1422

1420

1419

3775

1425

1418

1426

1436

1376

1377

1378

1379

1380

1381 [PART II-SEC. 3 (ii)]

02.

26 22

03 70

50 19

79 08

19 04

72 01

93 00

91 02

70 00

14 10

36 07

15 05

11 04

85 02

57 03

23 03 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11, 2007/ श्रावण 20 , 1929 1

1383

1382

1330

1329

1328

3352

1335

3599

3598

1339

1297

1296

1285

1295

1283

1286

1287

1288

1289

1284

1254

1252

1251

1250

1534

1535

1536

1538

1540

1544

1547

1545

1546

2513

5209 5

03.

27 [PART II-SEC. 3(ii)] 5210

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA20, 1929

1626

1622

1613

1623

3520

1387

1950

[F. No. R-25011 /12/2004-O.R. -1 ] S.K. CHITKARA , Under Secy.

नई दिल्ली, 6 अगस्त, 2007

का.आ. 2237.- केन्द्रीय सरकार ने पेट्रोलियम और प्राकृतिक गैस मंत्रालय के का. . 1054 दिनांक 10 अप्रैल 2007 द्वारा पेट्रोलियम और खनिज पाइपलाइन्स ( भुमि में उपयोग के अधिकार का अर्जन ) अधिनियम, 1962 (1962 का 50 ) की धारा 3 की उप- धारा ( 1 ) के अधीन अधिसुचना प्रकाशित कर , पारादीप- हल्दिया पाइपलाइन परियोजना हेतु कच्चे तेल परिवहन करने के प्रयोजन के लिये उड़ीसा राज्य के पारादीप से पश्चिम बंगाल राज्य के हल्दिया तक पाइपलाइन बिछाने हेतु संलग्न अनुसूची में विनिर्दिष्ट जिलाः बालासोर , उड़ीसा की भुमि में उपयोग के अधिकार के अर्जन के अपने आशय की घोषणा की थी ।

और उक्त राजपत्र अधिसुचना की प्रतियों जनता को ता.07.06.2007 को उपलब्ध करा दी गई थी।

और उक्त अधिनियम की धारा 6 की उप- धारा (1 ) के अनुसरण में सक्षम प्राधिकारी ने केन्द्रीय सरकार को अपनी रिपोर्ट दे दी है ।

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात , और यह समाधान हो जाने पर कि उक्त भुमि पाइपलाइन बिछाने के लिए अपेक्षित है, और सभी उपयोग का अधिकार अर्जित करने का विनिश्चय किया है ।

अतः अब केन्द्रीय सरकार ने उक्त अधिनियम की धारा 6 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुये , घोषणा करती है कि इस अधिसुचना से संबन्ध अनुसूची में विनिर्दिष्ट भुमि में उपयोग का अधिकार पाइपलाइन बिछाए जाने हेतु अर्जित किया जाता है ।

और केन्द्रीय सरकार , उक्त अधिनियम की धारा 6 की उप - धारा (4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुये यह निर्देश देती है की उक्त भुमि में उपयोग का अधिकार इस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने की बजाय सभी विल्लंगमों से मुक्त हो कर इंडियन ऑयल कॉरपोरेशन लिमिटेड में निहित होगा। [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

अनुसूची जिल्हा: बालेश्वर

तहसील का नाम

गाँव का नाम

5211 राज्य: उडिसा

क्षेत्रफल

खसरा संख्या

3 सोरो

1652

गुड

1642

2628

676

626

1651

1469

पाटीमुन्डा

223

दिनापाही

198

ब्रहमपुर

152

413

469

414

523

2242

अन्जी

2407

2402

2352

2236

2237

2368

2245

853

कान्हेओगालपुर

1957

करन्जाबीनधा

1702

1703

834

डोलपुर

हेक्टेयर

वर्ग मीटर

एयर

00:

78 5212

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

फतेहपुर बालेश्वर सदर

श्रीजन्ग

चान्दिपुर

साहाजानगर

गुडु

हिरीगान

पात्रापाडा

पाखराबाद बस्ता

कडामौदा

गोठोगडिया

बरखुदी

पोरापाडा

धनाहांडा

दराडा

दान्डि

बालिसाहि

गुहालिपडा

अछुयापडा

पथदुर्गा

[PART II-SEC. 3( ii) ] 4

908

73 4911

347

95 00

5774

94 00

2254

95 1724

64 1719

1722

742

755

10 831

463

64 431

328

1042

183

155

176

173

42 167

80 29

10 3108

93 00

2267

85 00

35 480

67 00

478

35 474

468

39 338

76 341

343

65 00

295

-00

47 1305 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20 , 1929

356

त्रैलोकी

325

777 बालियापाल

रेमु

1526

1533

1994

1564

धानंदा

335

336

260

338

निखीरा

1124

1285

1187

1188

1190

1193

2641

2642

1280

1288

1093

990

567

पालपड़ा

568

569

571

415

240

208

209

532

534

533

536 3287 GI /07-12

5213 4

31 5214

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20 , 1929

3 1

556

572

562

223

2344

787

1526

2343

757

दखिनपडा

859

खालबडिया

जलेश्वर

896

256

897

229

223

1167

कसिदा

1248

1169

1184

1200

1246

1182

1172

1719

1174

1249

1745

544

गौरीबेलदा

524

525

घांटियाडी

541

852

1623

नुआपली

1670

[PART II-SEC. 3( ii )]

.42

34 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11. 2007/ श्रावण, 20 , 1929

नाचिंदा

2408

1917

1928

1837

191

देनुअरा

706

862

गाबगों

1912

606

604

565

577

611

578

601

580

579

605

576

2202

575

अलालबिंदा

1931

1166

रायपुर

बटग्राम

3388

2298

कटीसाही

181

मोहम्दराजपुर

1617

कुलिदा

2277

499

बलरामपुर

5215

00.

[फा. सं. आर-25011/19/2004- ओ.आर. - 1 ] एस. के. चिटकारा , अवर सचिव [PART II-SEC. 3 ( ii )] THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

5216

New Delhi , the 6th August , 2007

S. O. 2237. Whereas by the notification of the Government of India in the Ministry of Petroleum and Natural Gas , published in the Gazette of India vide S.O. No. 1054 dated 10.04.2007 issued under sub-section ( 1 ) of section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land ) Act'1962 (50 of1962) the Central Government declared its intention to acquire the right of user in the land specified in the schedule appended to that notification for the purpose of laying pipeline for the transportation of Crude Oil from Paradip in the State of Orissa to Haldia in the State of West Bengal by the Indian Oil Corporation Limited for its Paradip - Haldia Crude Oil Pipeline Project .

And whereas , copies of the said notification were made available to the general public on 07.06.2007.

And whereas, the Competent Authority has under sub- section ( 1 ) of section 6 of the said Act, submitted his report to the Central Government .

Andwhereas the Central Government after considering the said report is satisfied, that, the right of user in the land specified in the Schedule appended to this Notifications should be acquired .

Now, therefore in exercise of the powers conferred by sub - section ( 1 ) of section 6 of the said Act, the Central Government hereby declares that the right of user in theland specified in the Schedule appended to this notification is hereby acquired for laying the pipeline.

And further, in exercise of the powers conferred by sub - section (4) of section 6 , Central Government hereby directs the right of user in the said land shall instead of vesting in the Central Government vest, on the date of publication of this declaration , in the Indian Oil Corporation Limited free from all encumbrances 5217 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण, 20, 1929

Schedule

State: Orissa District : Balasore

Area

Khasra No.

Name of Tehsil Nameof Village

Are

Hectare

Sq.mtr .

Soro

Gud

1652

1642-

2628

676

626

1651

1469

Patimunda

223

Dinapahi

198

Brahampur

152

413

469

414

523

2242

Anjee

2407

2402

2352

2236

2237

2368

..00

2245

853

Kanheiogolpur

1957

Karanjabindha

1702

1703

834

Dolpur

908

Fatehpur 5218

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

Balasore Sadar

4911

Srijang

347

Chandipur

Sahajanagar

Gudu

5774

2254

1724

Hirigan

1719

1722

742

Patrapada

755

Pakhrabar

831、

Kadamouda

463 Basta

431

328

Gothagaria

Barakhudi

1042

183

Porapara

155

176

173

167

Dhanhanda

Darada

3108

Dandi

Balisahi

2267

480

Guhalipada

478

474

468

338

Achhuapada

341

343

295

1305

Pathadurga

Trailoki

356

325

[PART II-SEC. 3(ii ) ]

10 00

80 00

95 00

00 00

02 00

01.

89 00

24.

31 00

80 00

93 00

85 00

67 00

39 00

47 00

31 00

00 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11, 2007/ श्रावण 20 , 1929 1

4 Remu

Baliapal

777

1526

1533

1994

1564

00 Dhanda

335

336

00.

260

338

00 Nikhira

1124

1285

1187

1188

1190

1193

2641

2642

1280

1288

1093

990

567

Palpada

568

569

571

415

240

208

209

532

534

533

536

556

572

5219 5

34,

38 5220

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

562

223

2344

787

1526

2343

757

Dakhinpada

859

Khalabaria

Jaleswar

896

256

897

229

223

1167

Kasida

1248

1169

1184

1200

1246

1182

1172

1719

1174

1249

1745

544

Gauribelda

524

525

Ghantiari

541

852

1623

Nuapali

1670

2408

Nachinda

1917

[PART II-SEC. 3 (ii )]

00 5221 भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

[ भाग II- खण्ड 3 ( ii ) ]

1928

1837

191

Denuara

706

862

1912

Gabagan

606

604

565

577

611

578

601

580

579

605

576

2202

575

1931

Alalbindha

10.

1166

Raipur

3388

Batgram

Katisahi

2298

00.

181

Mohamadrajpur

1617

Kulida

2277

499

Balrampur

[ F. No. R -25011 /19/2004-O.R. -I ] S.K. CHITKARA , Under Secy.

नईदिल्ली, 9 जुलाई , 2007

का.आ. 2238.- केन्द्रीय सरकार को लोकहित में यह आवश्यक प्रतीत होता है कि मैसर्स रिलायन्स इंडस्ट्रीज लिमिटेड की आंध्र प्रदेश कीसंरचनाओं से महाराष्ट्र राज्य में थाणे ज़िले के विभिन्न उपभोक्ताओं तक प्राकृतिक गैस के परिवहन के लिए, मैसर्स रिलायंस गैस ट्रान्सपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड द्वारा एक पाइपलाइन बिछाई जानी चाहिए;

3287 G1/07-13 5222

[PART II-SEC. 3(ii ) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

और केन्द्रीय सरकार को उक्त पाइपलाइन बिछाने के प्रयोजन के लिए यह आवश्यक प्रतीत होता है कि उस भूमि में, जिसके भीतर उक्त पाइपलाइन बिछाई जाने का प्रस्ताव है और जो इस अधिसूचना से उपाबद्ध अनुसूची में वर्णित है, उपयोग के अधिकार का अर्जन किया जाए;

अतः अब, केन्द्रीय सरकार , पेट्रोलियम और खनिज पाइपलाइन (भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम, 1962 (1962 का 50 ) की धारा 3 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , उनमें उपयोग के अधिकार अर्जन करने के अपने आशय की घोषणा करती है ;

कोई व्यक्ति जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है , उस तारीख से जिसको उक्त अधिनियम की धारा 3 की उपधारा (1 ) के अधीन जारी की गई अधिसूचना की प्रतियाँ साधारण जनता को उपलब्ध करा दी जाती हैं, इक्कीस दिन के भीतर भूमि के नीचे पाइपलाइन बिछाई जाने के लिए उपयोग के अधिकार के अर्जन के संबंध में श्री एस . डी . भिसे , सक्षम प्राधिकारी , रिलायन्स गैस ट्रान्सपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड, हरि नारायण कॉम्प्लेक्स , दूसरी मंजिल, जुना डालडा डिपो, शिवाजी चौक , फर्नीचर मार्केट , उल्हासनगर 421003 , जिला ठाणे , महाराष्ट्र राज्य को लिखित रूप में आक्षेप भेज सकेगा ।

अनुसूची

जिला: ठाणे

राज्य: महाराष्ट्र

मंडल/ तहवील/तालुका: अंबरनाथ

आर . ओ . यु . अर्जित करने के लिये क्षेत्रफल गांव का नाम

सर्वे / हिस्सानंबर

सि. एयर

एयर

हैक्टेयर

17/1B

1) आंबेशिव बु.

19/6/A

10/7

2) इंदगांव

52/1 *

3)कान्होर

67/4 *

69/2*

69/9*

70/4*

99/1*

100/3 *

172/1 / B

* का. आ. 636 दिनांक 23.02.2005 में 3 (1 ) की अधिसूचना का अतिरिक्त क्षेत्रफल

[फा. सं. एल-14014/43/2004-जी. पी. ]

एस. बी. मण्डल , अवर सचिव 5223 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण, 20, 1929

[ भाग II- खण्ड 3 ( ii ) ]

New Delhi , the 9th July, 2007

S. O. 2238. Where it appears to the Central Government that it is necessary in the public interest that for the transportation of natural gas from structures in Andhra Pradesh of M/ s Reliance Indus- tries Limited, to various consumers of District Thane in the State of Maharshtra , a pipeline should be laid down by M/ s Reliance Gas Transportation Infrastructure Ltd .;

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

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

Any person interested in the land described in the said Schedule may, within twenty- one days from the date on which the copies of the notification as published in the Gazette of India under sub - section (1 ) of Section 3 of the said Act, are made available to the general public, object in writing to the acquisition of right of the user therein for laying the pipeline under the land to Shri S. D. Bhise, Competent Authority, Reliance Gas Transportation Infrastructure Limited, Hari Narayan Complex, 2nd Floor, Old Dalda Depot, Shivaji Chowk, Furniture Market , Ulhasnagar- 421003 , District Thane, Maharashtra State .

Schedule

District: Thane

Mandal/Tehsil /Taluka : Ambernath

State : Maharashtra

Area to be acquired for ROU Village

Survey/ Sub-division No.

C-Are

Are

Hectare

17/1B

1) Ambeshiv Bk

29 19/6/A

20 10/7

2) Indgoan

52/1 *

92 3) Kanhor

46 67/4*

69/2

69/9*

00 70/4 *

99/1 *

94 100/3 *

40 172/1/B

Additional area to 3( 1 ) Notification SO 636 dated 23.02.2005

[F. No. L- 14014/43/2004-G.P . ]

S. B.MANDAL . Under Secv 5224

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20 , 1929

[PART II-SEC . 3 ( ii ) ]

नई दिल्ली , 9 जुलाई, 2007

का.आ. 2239.- केन्द्रीय सरकार को लोकहित में यह आवश्यक प्रतीत होता है कि मैसर्स रिलायन्स इंडस्ट्रीज लिमिटेड की आंध्र प्रदेश की संरचनाओं से महाराष्ट्र राज्य में थाणे जिले के विभिन्न उपभोक्ताओं तक प्राकृतिक गैस के परिवहन के लिए, मैसर्स रिलायंस गैस ट्रान्सपोर्टशन इन्फ्रास्ट्रक्चर लिमिटेड द्वारा एक पाइपलाइन बिछाई जानी चाहिए;

और केन्द्रीय सरकार को उक्त पाइपलाइन बिछाने के प्रयोजन के लिए यह आवश्यक प्रतीत होता है कि, उस भूमि में, जिसके भीतर उक्त पाइपलाइन बिछाई जाने का प्रस्ताव है और जो इस अधिसूचना से उपाबद्ध अनुसूची में वर्णित है, उपयोग के अधिकार का अर्जन किया जाए ;

अतः अब, केन्द्रीय सरकार , पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन) अधिनियम, 1962 (1962 का 50 ) की धारा 3 की उपधारा (1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , उनमें उपयोग के अधिकार अर्जन करने के अपने आशय की घोषणा करती है;

कोई व्यक्ति जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है, उस तारीख से जिसको उक्त अधिनियम की धारा 3 की उपधारा (1 ) के अधीन जारी की गई अधिसूचना की प्रतियाँ साधारण जनता को उपलब्ध करा दी जाती हैं, इक्कीस दिन के भीतर भूमि के नीचे पाइपलाइन बिछाई जाने के लिए उपयोग के अधिकार के अर्जन के संबंध में श्री एस . डी . भिसे, सक्षम प्राधिकारी, रिलायन्स गैस ट्रान्सपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड, हरि नारायण कॉम्प्लेक्स, दूसरी मंजिल, जुना डालडा डिपो , शिवाजी चौक, फर्नीचर मार्केट, उल्हासनगर 421003 , जिला ठाणे, महाराष्ट्र राज्य को लिखित रूप में आक्षेप भेज सकेगा ।

अनुसूची

जिला: ठाणे मंडल/ तहसील/तालुका: कल्याण राज्य: महाराष्ट्र

आर . ओ . यु . अर्जित करने के लिये क्षेत्रफल

सर्वे / हिस्सा नंबर

गांव का नाम

34/1/1 1) अनखर

34/1/3

29/1 2) आपती

12/2 c) गुरवली

34/5A

34/5B

62/14

25/5 4) मांजर्ली

31/3*

31/4*

69/6

69/10

69/12

69/20

69/22

सि. एयर

एयर

हैक्टेयर

5 3

00 5225

भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खण्ड 3 ( ii ) ]

5 1

23-

7/9

5) वाहोली

14/13

14/14

14/15

94/1*

114/12

49/6

6) टिटवाला

* का. आ. 3037 दिनांक 23.11.2004 में 3 (1 ) की अधिसूचना का अतिरिक्त क्षेत्रफल

[फा. सं. एल-14014/42/2004-जी. पी. ]

एस. बी. मण्डल, अवर सचिव

NewDelhi , the 9th July, 2007

S. O. 2239.- Where it appears to the Central Government that it is necessary in the public interest that for the transportation of natural gas from structures in Andhra Pradesh of M/s Reliance Indus- tries Limited , to various consumers of District Thane in the State of Maharshtra , a pipeline should be laid down by M/ s Reliance Gas Transportation Infrastructure Ltd .;

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

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

Any person interested in the land described in the said Schedule may, within twenty- one days from the date on which the copies of the notification as published in the Gazette of India under sub - section ( 1 ) of Section 3 of the said Act , are made available to the general public , object in writing to the acquisition of right of the user therein for laying the pipeline under the land to Shri S. D. Bhise , Competent Authority, Reliance Gas Transportation Infrastructure Limited, Hari Narayan Complex, 2nd Floor , Old Dalda Depot , Shivaji Chowk , Furniture Market , Ulhasnagar-421003 , District Thane , Maharashtra State .

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

5226

[PART II SEC . 3( ii ) ]

Schedule

State: Maharashtra

District : Thane

Mandal /Tehsil Taluka: Kalyan

Survey/ Sub -division No.

Village

34/1/1

1) Ankhar

34/1/3

29/1

2)Apti

12/2

3) Guravali

34/5A

34/5B

62/14

25/5

4) Manjarli

31/3*

31/4*

69/6

69/10

69/12

69/20

69/22

7/9

5) Vaholi

14/13

14/14

14/15

94/1 *

114/12

49/6

6) Titwala

Additional area to 3( 1 ) Notification SO 3037 dated 23.11.2004

Area to be acquired for ROU

C-Are

Are

Hectare

5 3

04 00

02 00

50 00

90 00

[F. No. L-14014/42/2004-G.P . ] S. B. MANDAL, Under Secy.

नई दिल्ली , 9 अगस्त, 2007

का.आ. 2240.- केन्द्रीय सरकार को ऐसा प्रतीत होता है कि लोक हित में यह आवश्यक है कि मथुरा-जालंधर पैट्रोलियम उत्पाद परिवहन के संवर्धन परियोजना के कार्यान्वयन हेतु राष्ट्रीय राजधानी क्षेत्र में मुंडका से राष्ट्रीय राजधानी क्षेत्र के टिकरी कलां एल. पी. जी. बाटलिंग प्लांट तक पैट्रोलियम उत्पादों के परिवहन के लिए इंडियन ऑयल कार्पोरेशन लिमिटेड द्वारा एक पाइपलाइन बिछाई जानी चाहिए;

और केन्द्रीय सरकार को ऐसी पाइपलाइन बिछाने के प्रयोजन के लिए यह आवश्यक प्रतीत होता है कि उस भूमि में, जिसके भीतर उक्त पाइपलाइन बिछाई जाने का प्रस्ताव है और जो इस अधिसूचना से संलग्न अनुसूची में वर्णित है, उपयोग के अधिकार का अर्जन किया जाए ;

[ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण, 20, 1929

5227 अतः, अब,' केन्द्रीय सरकार, पैट्रोलियम और खनिज पाइपलाइन्स ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 (1962 का 50) की धारा 3 की उपधारा (1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , उक्त भूमि में उपयोग के अधिकार का अर्जन करने के अपने आशय की घोषणा करती है;

कोई व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है, उस तारीख से जिसको, भारत के राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियां साधारण जनता को उपलब्ध करा दी जाती हैं, इक्कीस दिन के भीतर , भूमि के भीतर पाइपलाइन बिछाए जाने के लिए उपयोग के अधिकार के अर्जन के लिए , श्री आजाद सिंह, भूमिअर्जन अधिकारी व सक्षम प्राधिकारी ( दिल्ली ) , इंडियन ऑयल कॉर्पोरेशन लिमिटेड, उत्तरी क्षेत्र पाइपलाइन्स , कपासहेड़ा- नजफगढ़ रोड, बिजवासन, नई दिल्ली-1100061 को लिखित रूप में आक्षेप भेज सकेगा ।

अनुसूची

क्षेत्रफल

जिला तहसील गांव

हदबस्त संख्या

मुस्तील संख्या

खसरा / किला संख्या हेक्टेयर

एयर वर्गमीटर 1

9 पश्चिमी दिल्ली पंजाबी बाग

118

मुन्डका

114

115

150

पश्चिमी दिल्ली पंजाबी बाग हिरन कूदना

65 22 22 22 96 42 06 59 53 91 85

24 25 26 27 28 34 35 36 45 48 50 83

11 [PART II-SEC. 3 (ii )] THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20 , 1929

5228

369

370

371

372

373

374

375

378

466

467

478

479

480

483

पंजाबी बाग टिकरी कला

पश्चिमी दिल्ली

5/1

18/2

512

582

1430

1433

1434

1436

119

59 सरस्वती विहार घेवरा

उत्तरी पश्चिमी दिल्ली

[फा. सं. आर-25011/ 7/2007- ओ.आर. - 1 ]

एस. के. चिटकारा , अवर सचिव [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20 , 1929

5229

New Delhi , the 9th August , 2007

S. O. 2240.-Whereas it appears to the Central Governrnent that it is necessary in the public interest that "Augmentation of Mathura-Jalandhar Pipeline system " for the transportation of Petroleum Product from Mundka in the NCT of Delhi to Tikri Kalan LPG Bottling Plant in the NCT of Delhi , a pipeline should be laid by the Indian Oil Corporation Limited;

And, whereas, it appears to the Central Govemment that for the purpose of laying the said pipeline , it is necessary to acquire the right of user in the land under which the said pipeline is proposed to be laid , and which is described in the Schedule annexed to this notification ; Now, therefore , in exercise of the powers conferred by sub-section ( 1 ) of section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land ) Act, 1962 (50 of 1962) , the Central Government hereby declares its intention to acquire the right of user therein;

Any person interested in the land described in the said Schedule may, within twenty one days from the date on which the copies of the notification issued under sub- section ( 1 ) of section 3 of the said Act , as published in the Gazette of India are made available to the general public, object in writing to the acquisition of the right of user therein for laying of the pipeline under the land, to Shri Azad Singh , Land Acquisition Officer & Competent Authority ( Delhi ) , Indian Oil Corporation Limited, Northem Region Pipelines , Kapashera- Najafgarh Road, Bijwasan , New Delhi -110061.

SCHEDULE

Area District

Tehsil

Village

Hadbast No.

Mushtil No.

Khasra / Killa No. Hectare Are

Square Metre 1

9 WestDelhi

Mundka

Panjabi Baug

118

114

115

69 3287 G1/07-14 [PART II-SEC. 3 ( ii ) ] THE GAZETTE OF INDIA: AUGUST 11 , 2007/SRAVANA 20, 1929

5230

150

WestDelhi Panjabi Baug

Hiran Kudna / Jafarpur

08 :

369

370

371

12 22

372

373

374

375

378

466

467

478

479

480

483

Tikri Kalan

96 Panjabi Baug

WestDelhi

5/1

18/2

10 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929

5231 2

4 5

512

582

00 :- 02

1430

1433

1434

1436

Ghevra

119

Sarswati Vihar

32 NorthWest Delhi

[ F. No. R -25011 /7/2007- O.R. - I ]

S.K. CHITKARA, Under Secy.

नई दिल्ली, 10 अगस्त, 2007

का.आ. 2241.- केन्द्रीय सरकार, पेट्रोलियम और खनिज पाइपलाइन (भूमि में उपयोग के अधिकार का अर्जन) अधिनयिम, 1962 ( 1962 का 50) की धारा 2 के खण्ड (क) के अनुसरण मे, भारत सरकार के पेट्रोलियम और प्राकृतिक गैस मंत्रालय की अधिसूचना का० आ0 3503 दिनांक 26 सितम्बर, 2005 का अधिक्रांत करते हुए सिवाय उन बातों के जो ऐसे अधिक्रमण से पूर्व की गई है या करने का लोप किया गया है श्री एस के ब्रहमभट, मामलातदार, सरदार सरोवर पुनस्थापन एजेन्सी-1 , बदोदरा गुजरात सरकार क्को, जनको अपने कार्यभार के साथ साथ भारत ओमान रिफाइनरीज लिमिटेड की सेन्ट्रल इंडिया रिफाइनरी परियोजना से सबंधित वाडीनार (गुजरात) से बीना ( मध्य प्रदेश ) तक की देशव्यापी कूड पाइपलाइन के लिए, सक्षम प्राधिकारी के कृत्यों का निर्वहन करने के लिए, उक्त अधिनियम के अधीन, गुजरात राज्य के राज्यक्षेत्र के भीतर, प्राधिकृत करती है !

[फा. सं. आर-31015/ 1/2007- ओ.आर. - 11 ]

ए. गोस्वामी , अवर सचिव

New Delhi , the 10th August , 2007

S. O. 2241.-In pursuance of Clause (a) of Section 2 of the Petroleum and Minerals Pipelines ( Acquisition of Right of User in Land) Act, 1962 (50 of 1962) and in supersession of the Government of India in the Ministry of Petroleum & Natural Gas S.O. No. 3503 dated the 26th September, 2005, except as respects things done or omitted to be done before such supersession, the Central Government hereby authoirses Shri S.K, Brahmbhatt , Mamlatdar, Sardar Sarovar Rehabilitation Agency- 1 , Vadodara, Government of Gujarat to perform the functions of the competent authority in addition to his own duties under the said Act. for cross country crude pipeline from Vadinar ( Gujarat) to Bina (Madhya Pradesh ) of Bharat Oman Refinereis Limited's Central India Refinery Project, within the territory of State of Gujarat.

[F. No. R -31015/1/2007 - O.R. -II ] A. GOSWAMI , Under Secy .

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929

5232

श्रम एवं रोजगार मंत्रालय नई दिल्ली , 18 जुलाई , 2007

3. The General Manager , M/s . Singareni Collieries Co. Ltd. , SrirampurArea , Srirampur. Distt. Adilabad.

4. The Chairman & Managing Director ,

M/s. Singareni Collieries Co. Ltd. , Kothagudem.

Respondents

Distt . Khammam .

APPEARANCES

का.आ. 2242--औद्योगिक विवाद अधिनियम , 1947 ( 1947 का14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार एस.सी.सी.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , हैदराबाद के पंचाट ( संदर्भ संख्या 13/2006 ) को प्रकाशित कस्ती है, जो केन्द्रीय सरकार को 18-07-2007 को प्राप्त हुआ था ।

Forthe Petitioner

[सं. एल-22013/1/2007- आई आर ( सी- II ) ]

: Sri S. Bhagwanth Rao , Advocate

अजय कुमार गौड़ , डैस्क अधिकारी

For the Respondent

MINISTRY OF LABOUR AND EMPLOYMENT

: M/s P.A. V.V.S. Sarma & Vijayalakshmi , Advocates NewDelhi, the 18th July, 2007

AWARD

This case was taken in view of the judgement of the Hon'ble High Court of Andhra Pradesh reported in 1997 (3) LLJ Supplement , page 1141 in W.P. No. 8395 of 1989 dated3-8-1995 between Sri U. Chinnappa and M/ s . Cotton Corporation of India and two others .

S.O. 2242. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby punblishes the award (Ref. No. 13/ 2006)ofthe Central Government Industrial Tribunal cum Labour Court, Hyderabad as shown in the Annexure inthe Industrial Dispute between the employers in relation to the management of SCCL and their workman , which was received by the Central Government on 18-07-2007.

[No. L-2201 3/ 1 /2007- IR (C- II ) )

AJAY KUMAR GAUR, Desk Officer

ANNEXURE

2. This is a petition filed by the Petitioner Rayudu Rambabu against the Management M/s . Singareni Collieries Co. Ltd., under Sec . 2A (2 ) of the Industrial Disputes Act , 1947 to set aside the dismissal order dated 7-12-2002 passed by the second Respondent and for reinstatement into service with all attendant benefits and back wages .

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUMLABOUR COURT AT HYDERABAD PRESENT

Shri T. Ramachandra Reddy, Presiding Officer Dated the 8th day of June , 2007

L. C. I. D. No. 13/2006 BETWEEN

Sri Rayudu Rambabu ,

Petitioner

S/o late Krishna Rao , H. No. 514, Gandhinagar, Godavarikhani- 505 209 . AND

1. The Dy. General Manager , M/s. Singareni Collieries Co. Ltd. , RK. No. 6 incline, Ramakrishnapur.. Distt.Adilabad.

3. The petitioner submitted that he has been appointed as a badli coal filler by order dated 21-3-2000 and that he could work 196 musters during the year 2000 excluding the leave availed and other weekly and paid holidays and further he has put up 130 musters during the year 2001. He met with an accident orr 12-7-2001 while on duty and that he was referred to orthopaedic surgeon and that he was treated in the Respondent's hospital . On account of his accident he could not regularly attend his duties in the year 2001 and 2002. He was issued with a chargesheet alleging that he was absent from duties without leave sick or prior permission from 20-2-2002 and that he has given an explanation to the chargesheet submitting medical certificates but however an enquiry was conducted on 5-10-2002 and that his father was chronic paralysis patientwho was staying with him and that he has to attend hisfatherand further his quarter allotted by the Respondent is situated at a long distance from the place of work. As such he could not attend to his duties . The domestic enquiry conducted by the Respondent is not valid and the findings are frivolous and biased and that he gave an explanation to the enquiry report but the Disciplinary Authority has dismissed him without considering his explanation .

2. The General Manager , M/s. Singareni Collieries Co. Ltd. , Ramakrishnapur. Distt. Adilabad .

[ भाग II- खण्ड 3 (ii ) ]

4. The Respondent filed the counter and denied the averments made in the petition and pleaded that the Petitioner was appointed as a badli coal filler w.e.f. 23-3-2000 and posted to work at RK No. 6 incline and the Petitioner has put in only 130 musters in the year 2001 and 8 musters in the year 2002. The Petitioner met with an accident but he was declared fit by the medical authorities on 1-8-2001 and that the Petitioner has put up only 130 musters in the year 2001 and he was continuously absent from 20-2-2002 as such a chargesheet was issued dated 6-6-2002 under the Company's Standing Orders No. 25.31 . It is further submitted that the Petitioner did not submit any evidence of medical reports declaring him unfit from the company's hospital for his absence in the year 2002. Since the Petitioner was absent from duty without leave sick or prior permission from the competent authority, chargesheet was issued and enquiry was duly conducted . The Petitioner was given full and fair opportunity during the enquiry and the Enquiry Officer observed the principles ofnatural justice . The Petitioner has admitted the charges during the enquiry . On submission of the enquiry report a show cause notice was issued furnishing a copy of enquiry report to the Petitioner . On considering the representation by the Petitioner , the Petitioner was dismissed from service and the punishment is in consonance with the gravity of the charge.

5. The Petitioner has not disputed the validity of the domestic enquiry and filed memo to that effect on 14-12-2006.

6. Arguments heard under sec. 11A of Industrial Disputes Act , 1947.

7. The Learned Counsel for the Petitioner contended thatthe Petitioner could not attend to his duties on account of involving in an accident and prolonged treatment and further Petitioner's father was patient and the Petitioner has to attend on his father . Father the Enquiry Officer did not consider the plea of the Petitioner that he could not attend to his duties due to illness and treatment .

8. On the other hand , the Learned Counsel for the Respondent contended that the Petitioner has admitted that the charge of absenteeism and given in writing and the Enquiry Officer accepted the plea of the Petitioner and held that the charge against him was proved and further contended that the punishment imposed is in consonance with the gravity of the charge.

9.The enquiry conducted by the Enquiry Officer is notdisputed and the charge against him that he was absent without sanctioned leave or sufficient cause or prior permission from 20-2-2002 . The chargesheet was issued on 6-6-2002. The Petitioner has submitted a memo admitting

5233

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

the charge . The Petitioner has submitted another letter admitting his absence and also admitted that he was given counseling by the Respondent Management in the presence ofthe co- workers and family memberson 12-6-2002 .

10. On considering the material on record it is found that the Enquiry Officer has conducted the enquiry by observing the principles of natural justice and concluded that the charge against the Petitioner was proved basing on the admission of the Petitioner .

11. The Disciplinary Authority on considering the explanation given by the Petitioner and also the past record of his absence , has imposed the extreme punishment of dismissal .

12. It may be noted that when the Petitoner was involved in the accident he was treated in the Respondent's hospital and that he was taken to duty only after æclaring him as fit . When he was found to be fit , the Petitoner is expected to attend his duties regularly. The Petitione.could not substantiate his plea that he was absent on account of hisillness before the Enquiry Officer. The Learned Counsel for theRespondent relied on 1996( 1 ) SCC page 301 wheein it was held by the Apex Court that unauthorized absenteeism need not be condoned and the Management isright in terminating the services as follows:

"Having noticed the fact that the first Respondent has absented himself from duty without leave on several occasions , we are unable to appreciate the High Court's observations that "His absence from duty would not amount to such a grave charge" . Even otherwise , on the facts of this case, there was no justification for the High Court to interferewiththe punishment holding that " the punishment does not commensurate with the gravity of the charge "especially when the High Court concurred with the findings of the Tribunal ort facts . No case for interference with the punishment is made out " . The Hon'ble Supreme Court allowed the Appeal . "

13. In view of the circumstances , I do not see any mitigating circumstances to take a lenient view . Further , the punishment imposed by the Respondent is in consonance with the gravity of the charge . Therefore , I do not see any merits in the petition .

Award passed accordingly, Transmt.

Dictated to Smt . P. Phani Gowri , Personal Assistant , transcribed by her and corrected by me on this the 8th day of June, 2007.

T. RAMACHANDRA REDDY Presiding Officer 5234

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

Appendix of evidence

Witnesses examined for the Petitioner : Witnesses examined for the Respondent

NIL

NILL

Docurnents marked for the Petitioner

NIL

Documents marked for the Respondent

NIL

नई दिल्ली, 19 जुलाई, 2007.

का.आ. 2243.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार, कलकत्ता टेलीफोन्स के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरण , कोलकाता के पंचाट ( संदर्भ संख्या 15/95 को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-07-2007 को प्राप्त हुआ था । सं. एल-40012/64/94+ आई आर ( डी. यू) ]

सुरेन्द्रसिंह , डैस्क अधिकारी New Delhi, the 19th July, 2007

S.O. 2243. In pursuance of Section 17 of the Industrial Dispute Act, 1947 ( 14 of 1947) , the Central Government hereby punblishes the award (Ref. No. 15/95) ofthe Central Government Industrial Tribunal cum Labour Court , Kolkata 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 19-07-2007.

[No. I -40012/64/94- IR (DU) ]

SURENDRA SINGH , Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 15 of1995

PARTIES

Employers in relation to the management of Calcutta

Telephones

and

Their workmen

PRESENT

Mr. Justice C.P. Mishra, Presiding Officer

[PART II-SEC . 3 ( ii )]

APPEARANCE

Onbehalf of the Mr. R.M. Chatterjee, Advocate withMs. M. Chatterjee, Advocate Management

: Mr. L.C. Haider , Advocate Onbehalf of the workmen

'Industry : Telephones State:West Bengal

Dated 11 the July , 2007

AWARD

By order No. L-40012/ 64/94- IR( DU ) dated 30-6-1995 the Central Government in exercise of its powers under Section 10( 1 ) (d) and (2A) of the Industrial Disputes Act, 1947 referred the following dispute to this Tribunal for adjudication:

"Whether the action of the management of Calcutta Telephones in terminating the services of Shri Debnath Chakraborthy, Ex - casual workman with effect from 1-7-89 was legal and justified ? If not , to what relief the workman will be entitled to ? ".

2. The present reference has been made at the instance of Shri Debnath Chakraborty the concerned workman in this case . The case of the workman as it appears from his written statement in brief is that he worked from 28-6-1988 to 30-6-1989 as a casual labour/daily rated mazdoor under S.D.O. ( Phones ) , 66 Exchange , Howrah under Calcutta Telephones . His job was to look after the P.C.Os at Howrah Station area and he worked there till 18-2-1989 under Mr. S.K. Kumar , S.D.O. P and Mr. T.B. Bag , J.T.O. For his such work an identity card bearing No. 66/PCO/H - S / 88-89 dated 28-6-1988 was issued to him by the said S.D.O.P. The said S.D.O.P. had also issued a certificate dated 25-8-1989 to the workman çertifying the number of days for which he had worked. Thereafter the concerned workman was transferred to S.D.O.P. , 60 Exchange in terms of the letter dated 18-2-1989 of the said S.D.O.P. An identity card was also issued to the concerned workman on 1-3-1989 and from that he worked there till 30-6-1989.The workman concerned has supplied the details of period of his work showing the total number of days of his work as 319 days . The service of the workman had suddenly been terminated without any notice or justification or compensation without complying with the provisions of Section 25F of the Industrial Disputes Act , 1947 hereinafter to be referred as the Act .It is stated that although the service of the workman concerned had been terminated, one Shri Panchkari Malick a person junior to himwith few others were allowed to work at Howarh Station area. It is also stated that after termination of service of the concerned workman . The concerned Area Office had recruited a number of fresh candidates numbering above 30 as casual workmen but his candidature for the same had been ignored. Thereafter the workman approached the conciliation officer and on failure of conciliation efforts of [भाग II-- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

5235 the conciliation officer the matter was referred to the Central Govt. which ultimately referred the present dispute to this Tribunal for adjudication . The workman has prayed for his reinstatement in service in permanent status with all back wages , increments and bonus etc.

examined as WW-1 on behalf of the workman . He has stated that he worked as a Chowkidar at Howarh Station P.C.O. from 28-6-1988 to 30-6-1989 for a total period of317 days. He was appointed by the S.D.O.P. but no appointment letter was given to him. He was however given a written identity card and certificates in this regard. He along with others were however transferred to 60 Exchange on the basis of the circular dated 18-2-1989 of the Calcutta Telephones . He used to get monthly salary against vouchers . According to him his servisce was terminated on 30-6-1989, but he was neither given any notice nor given any compensation before such termination . He then approached the management for his reinstatement but without any effect . In cross - examination the witness has stated that he is to aware of the procedure for appointment ofthe regular workmen in the Calcutta Telephones . He has also stated that after his termination one union had raised a dispute over the same but he could not show any document in this regard. He has further stated that except Item Nos. 8, 10, 15 , 17 and 23 all other workmen in annexure to Ext . W-4 were regular workman . He has further stated that he was appointed as Chowkidar but he admitted that ext.W-4 filedby him does not show that he was appointed asChowkidar . This witness has further been examined on recall and he has stated that he does not remember when his service was terminated but it was not before 1991 .

3. The management of Calcutta Telephones has also filed a written statement denying the claims of the concerned workman. It is stated that the present reference is not maintainable because the Calcutta Telephones is not an ' industry and the Chief General Manager against whom the reference is directed has no legal status independently inthe absence of the Union of India who was not impleaded as a party in the case . It is also stated that since the dispute has been referred to this Tribunal under Section 2 (k) read with Section 10 of the Act , Section 2A of the said Act has no application here and the reference suffers from inherent defects and the same cannot be adjudicated in its present form. The management has supplied the details of work of the concerned workman from 28-6-1988 to July , 1992 in paragraph 4 of the written statement . The case of the managernent is that the engagement of the concerned workman stood discontinued with effect from August , 1992 and not 1-7-1989 as claimed by him. In view of the Circular No. 270/6/84- STN dated 30-3-1985 issued by the Director General , Post and Telegraph , New Delhi and circular of even number dated 22-6-1988 issued by the Department of Telecommunication the concerned workman was not liable to be engaged and his engagement was bad in law and suffers from lack of jurisdiction and as such his prayer deserves no consideration . His engagement was temporarily suspended after 30-6-1989 being a need- based engagement and he was re - engaged for 110 days from September , 1991 to July, 1992, so it cannot be said that his service was terminated on 1-7-1989 . Therefore , it is not a case of illegal termination for which the provisions of Section 25F could be attracted. It is denied that Shri Panchkari Malik was allowed to work at that time or that he has been retained in engagement or that he is working at present . It is however stated that even if it is so management had not committed any irregularity by retaining said Panchkari Malik in such need-based casual engagement . It is also stated that there is no admission regarding non - compliance of Section 25F of the Act in the management's letter dated 17-8-1993 and the worked " discharged " as stated in the letter is not be taken adversely against the management as the concerned person failed to assess the implication of the same . Management has also denied other allegations of the workmen in seriatim .

6.MW- 1 , Susanta Kumar has been examined as MW- 1in this case on behlaf of the management . He happens to be the Divisional Engineer of Shibpur Telephone Exchage ofCalcutta Telephones . He has stated that he knew the concerned workman who worked under him for sometime in 1988-1989. He has also stated that there was no action bythe management of Calcutta Telephones in terminating the service of the concerned workman on 1-7-1989. In cross- examination he has stated that the concerned workman was engaged as a casual labour probably in June, 1988 . Though he was not sure if any identity card was provided to the workman or not , he has stated that the concerned workman was engaged as a casual labour probably in June , 1988. Though he was not sure if any identity card was provided to the workman or not , he has stated it mightbe possible . He has admitted his signatures on the documents Exts. W- 1 and W- 2 . He has also stated that the father of the concerned workman happened to be a technician employee at Howrah Station and the concerned workman used to assist him . According to the witness the job requirement was temporary in nature and because there was no requirement , his work was stopped.

4.A rejoinder is also filed on behalf of the workman denying the averments of the management in its written statement and also reiterating the case as stated in his written statement .

5.Parties in this case have examined on witness each . Debnath Chakraborthy the concerned workman has been

7. Six documents have been exhibited on behalf of the workman. Management however has not exhibited any document in this case . Ext . W - 1 is the identity Card. Exts . W-2 and W-3 arethe two certificates issued to the workman dated 25-8-1989 and 6-9-1990 respectively by the two 5236

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differentofficers of the Calcutta Telephones . Ext. W- 4 is the circular dated 18-2-1989 issued by the Calcutta Telephones Ext. W-5 is the attendance register and Ext.W- 6 is a letter dated 17-08-1993 written by the Deputy Area Manager (Howrarh ) addressed to the Assistant Labour Commissioner- II, Kolkata stating the payment particulars inrespect of the concerned workman from June , 1988 to June , 1989.

8. So far as the plea raised by the management challenging maintainability of the reference is concerned, it is evident that Calcutta Telephones is an ' industry' as defined under section 2(j ) of the Act which says , that "Industry means any business , trade , undertaking , manufacture or calling of employers and includes any calling, service, employment, handicraft , or industrial occupation or avocation of workman " . The telephone servie is also covered by this definition as it also carrier on both trade and business providing telephone service to the communitywhich is an essential factor to consider it to be an industry or not as it has been laid down by the Hon'ble Supreme Court in the Management of Safdarjang Hospital K.S. Sethy( 1970- II-LLJ-266) wherein the expression material service has been stated by the Hob'ble Supreme Court as involving an activity carried on through the cooperation betweenemployers and employee to provide the community with the use of something such as electric, power , quarters , transportation , mail delivery , telephone and the like . Such activities are all of commercial character in which something is brought into existence quite apart from the benefit to particular individuals . It is the production of this something which is described as production of material service.

9. Learned Counsel for the management has however submitted that telecommunication is run by the Central Government and it is under the Ministry of Union of India where employees hold office at the pleasure of the President of India. However , Government department is also an industry as defined under the Act in case there is systematic activityforproduction or distribution of goods and services to satisfy human wants concerned, not spiritual is carried onby them discharging soeverign functions . Moreover, the question of Telecommunication Department being an industry was specifically involved in a case before the Hon'ble Calcutta High Court wherein the claim of a casual worker was challenged by the management by raising the plea of non-maintainability of the reference on this ground and the Hon'ble High Court in 1981 - II - LLJ - 382 (Tapan Kumar Jana Vs. Calcutta Telephones ) held that Calcutta Telephones is an industry and in another case 2004- II-LLJ- 1092 the Hon'ble Division Bench had also similarly held thatTelecommunication Department is an industry in this regard. The Calcutta Telephones is represented through its Chief General Manager as on of the parties to this

[PART II-SEC . 3 ( ii ) ) reference and therefore it fulfils the requirement of impleading proper and necessary party in the schedule of reference regarding the claim of the workman concerned and there is no infirmity of any kind as submitted by the learned counsel for the management in this regard .

10. So it can be said regarding the other pleas raised about the maintainability of the reference and a formal defect therein in the schedule of reference sent for adjudication of an industrial dispute under Section 2 (k ) as the same has not been espoused by any union which is saidto be an essential requirement before the Government could refer the mattter for its adjudication before the Tribunal . It is evident that in this matter before it was referred by the Government the workman concerned had inititated conciliation proceeding before the Assistant Labur Commissioner vide Annexure -G to the written statement of the workman which shows that it was very much an industrial dispute as defined in Section 2 (k) of the Act as two of the office bearers of the union viz . Shri Tushar Kumar Saha, Circle Secretary and Pradip Kundu, Assistant Circle Secretary of B.T.E.U.I.S. & CL- IV of Calcutta Telephones represented the workmen during conciliation proceeding to show it an industrial dispute which of course ended in failure and the Government after being satisfied withthat aspect of the matter had referred it to this Tribunal for adjudication. Moreover , such formal defects do not affect the adjudication of the claim of the workman as mere wordings of the reference is not decisive and it is the duty of the Tribunal to decide the points on merit and not to discover the formal defects in the wording of the reference as it has been so observed in the case of Sheshrao Bhaduji Hatwar Vs. Presiding Officer, First Labour Court & Ors . 1992- I- LLJ- 672 that-

"Section 10(1 ) ( c) of the I.D. Act empowers the appropriateGovernment to refer the existing or apprehended industrial dispute or any matter appearing to be connected or relevant to the dispute relating to any item specified in the Second Schedule to a Labour Court for adjudication. Section 2(k) of the I.D. Act defined the term ' industrial dispute' .Any Dispute or diference betweeen the employer and individual workman connected with or arising out of discharge, dismissal , retrenchment or termination is deemed to be an industrial dispute under Section 2 -A of the I.D. Act . The definition of industrial dispute is itself wide enough to include any dispute or difference ' connected withthe employment or non - employment ' . There is a long line of decisions of the Supreme Court taking a view that order of reference should be liberally construed and the reference should not be rendered incompetent merely because it is made in general terms and it is always permissible for the labour Courts or the Tribunals to constru the refernce in the light of the backdrop against which it is made and to bring out the real dispute for its decision . The 5237 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

preceding oneyear from the alleged date of his termination on1-7-1989 after which he was not allowed to work by the management .

obvious reason for this approach is not ony the width of language used in the definition of ' industrial dispute ' in Section 2 -A and 10 of the I.D. Act but also the object behind the labour legislation . Industrial peace has to be achieved as early as possible and the battle is generally between unequals .'

12. Learned Counsel for the management , however , has challenged the claim of the workman in this connection stating that it is not a case of termination of service of the workman or retrenchment in any manner so as to attract the provisions of Section 25F of the Act as it was a case of temporary suspension of work of ad-hoc engagement which was further revived in his favour and he was re- engaged for 110 days for the period from September , 1991 to July , 1992 under the same management of Calcutta Telephones . It is , therefore, is not a case of illegal termination for which the provisions of Section 25F of the Act could be attracted . In this connection it is also submitted that Panchkari Malick had not been retained in service and he is not working at present . Moreover , the management had not committed any irregularity in retaining Shri Malic as his engagement was also a need -based casual engagement . He has also relied upon the admission of the workmanconcerned in his cross - examination on 11-10-2000 that there was no termination of his service prior to 1991 which itself shows that there was no termiantion of his service prior to that date and there was no question of his service being terminated on 1-7-1989 as per schedule of reference for which he has claimed the relief in this case . From the evidence on record it is however, found true that the concerned workman had admittedly worked for some period in the year 1991 and 1992 as well even after the date ofhisalleged termination on 1-7-1989 . But, this in no way will affect the claim of the workman who as per schedule of reference has specifically claimed the relief terming the alleged termination of his service with effect from 1-7-1989 saying it to be illegal and void as there had been no such compliance ofthe provisions of Section 25F of the Act in view ofthe fact that by that date he had already completed more than 240 days of work proceeding that relevant date in this regard . Before termination of his services or retrenchment he was entitled to get the notice or pay in lieu ofnotice and also a just compensation before his service could be legally so dispensed with by the management . It is however an admitted fact that that the workman concerned was not allowed to work by the management for more than two years or so after the said date of 1-7-1989 and merely the fact that for sometime he had been given some job thereafter , it in no way will affect his right so available to him under the Act, i.e. , to claim the relief for reinstatement etc. in this connection in case there had been any such violation of the Act as it has been found to be there in this particular case from the aforesaid evidence as led by the parties . As it is so proved in a positive way it is very much clear that the workman concerned though had completed more than 240 days of service prior to the relevant date of 1-7-1989, he was not allowed to work by 11. The next point remains to be considered regarding the merit of the claim of the workman concerned who has challenged the termination of his service with effect from 1st July , 1989 without complying with the provisions of Section 25F of the Act in this regard . It is evident that the workman concerned has stated on oath about the period of his service rendered in the Calcutta Telephone during 28-6-1988 to 30-6-1989 which was not challenged to be otherwsise on behalf of the management as in paragraph 4 of its written statement the details given also go to support the claim and contention of the workman in this regard that he had worked altogether 319 days in all . Besides that the fact is also so positively proved by the documentary evidence filed on behalf of the workman i.e. Exts . W- 2 and W-3 which are the two certificates issued to the workman by the two different officers of Calcutta Telephones in this connection . The identity card , Ext. W- 1 and the attendance register , Ext. - 5 fürther go to support the claim of the workman that he had rendered more than 240 days of service prior to the date 1st July , 1989 which is alleged to be the date of his termination in this regard. No doubt it is true that the inital burden of proof lies on the workman to show that he had rendered 240 dyas of continuous service inthe year preceding the date of his termination. However, thisburden is fully discharged upon by him in case he has adduced cogent evidence , both oral and documentary in this connection and in case the same is not rebutted by the management it will be taken as positively proved in his favour that he had worked for more than 240 days . The statement given by the management witness , MW- 1 , Susanta Kumar who had given the aforesaid certificate has also admitted this fact in his evidence and this is also not challengedby the management to show it to be otherwise either during the conciliation proceeding or even before thisTribunal that the workman concerned had not so worked for that much period in this regard . In case the workman had so worked for 240 days in a calender year preceding the date of his termination and in cae there has been no compliance of Section 25F of the Act prior to his retrenchment in this regard , any such order of retrenchment passed against him will be illegal and void ab initio as it is so held by the Hon'ble Supreme Court in Mohanlal Vs. Management of Bharat Electonics Ltd. , AIR 1981 SC 1253 , State of Bombay Vs. Hospital Mazdoor Sabha , AIR 1960 SC 610 , National Iron & Steel Co. Ltd. Vs. State of West Bengal , AIR 1967 SC 1206 , In view of the above, from the evidence on record it is fully proved and established that the concerned workman had so worked for 240 days

3287 G1/07--15 [PART II-SEC . 3( ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

5238

the management and that too without complying the provisions of Section 25F of the Act in this regard . In view ofthat it was not a legal and valid retrenchment and so it is clearly illegal and void ab initio as in such cases it has been so held by the Hon'ble Supreme Court in the case referred to above viz . Mohanlal (supra) and it has been observed by the Hon'ble Apex Court that:

Before a workman can complain of retrenchment being not in consonance with Section 25F, he hasto show that he has been in continuous service for not less than one year under that employer who has retrenched himfrom service . Section 25B is the dictionary clause for the expression continuous service.

apparently contributed little or nothing at all to it and/ or for a period spent unproductively as a result whereof the employer would be compelled to go back to a situation whichprevailed many years ago , namely, when the workman was retrenched. For this , the observations so made by the Hon'ble Supreme Court in Haryana Roadways v . Rudhan Singh (2005 ) AIR SCW 4634 are significant to lay down thatwhere the workman had worked for a short period, i.e, less than a year or so and having regard to his other basic qualifications etc. back wages were denied to him although the termination of his service was found to have been made in violation of Section 25F of the Act in this regard. The Hon'ble Supreme Court had laid down the various principles tobe considered for awarding back wages or compensation etc! after considering all relevant factors for the same on this count . It has been observed therein that :

Both on principle and on precedent it must be held thatSection 25- B (2 ) comprehends a situation where aworkman is not in employment for a period of 12 calendar months but has rendered service for period of240days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e. , the date of retrenchment . If he has , hewould be deemed to be in continuous service for apeiod of one year for the purpose of Section 25-B and Chapter V -A .

The relevant date will be the date of termination of service , i.e. , October 19,1974. Commencing from that date and contacting backwards , admittedly he had rendered service for a period of 240 days within a period of 12months and indisputably , therefore , his case falls within Section 25 - B (2) (a) and he shall be deemed to be in continous service for a period of one year for the purpose of Chapter V - A. Appellant has thus satisfied both the eligibility qualifications prescribed in Setion 25 - F for claiming retrenchment compensation . He has satisfactorily established that his case is not covered by any of the excepted or excluded categories and he has rendered continuous service for the one year . Therefore , termination of his service would constitute retrenchment . As pre-condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative . He must , therefore, be deedmed to be in continuous service .

"There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25Fofthe Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment, i.e. , whether after proper advertisement of the vacancy or inviting applications from the Employment Exchange , nature of appointment , namely , whether ad hoc, short term, dailywage, temporary or permanent in character , any special qualification required for the job and the like shouldbe weighed and balanced in taking a decision regarding award of back wages . One of the important factors , which has to be taken into consideration , is the length of service , which the workman had rendered with the employer . If the workman has rendered a considerable period of service and his services are wrongfully terminated , he may be awarded full or partial back- wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment . However , where the total length ofservice rendered by a workman is very small, the award of back wages for the complete period, i.e. , from the date of termination till the date of the award, which our experience shows is often quite large , would be inappropriate . Another important factor , which requires to be taken into consideration is the nature of employment . A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year . " .

Asdiscussed above , it is found that the termination ofthe service of the workman concerned was not in conformity with the provisions of the Act and as such it is held to be illegal and void ab initio.

InAllahabad Jal Sansthan v . Daya Shankar Rai , (2005) 5 SCC 124 , 2005 AIR SCW 2646 after considering the relevant cases on the point the Hon'ble Apex Court stated:

"We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside , reinstatement with full back-wages was the usual result. But now with the 13.As regards the relief to be granted in his favour in this case , it is no doubt true that the general rule of reinstatement with back wages is the principle to be followedbut recently the Hon'ble Supreme Court in number ofcases decided for laying down principles to be followed in this connection. The Hon'ble Court has asked to take a pragmatic view in the matter by keeping number of factors inmind, i.e , realizing that an industry may not be compelled to pay to the workman for the period during which he [भाग II- खण्ड 3 ( ii) ]

5239 भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

would consider all relevant circumstances referred to above and keeping in view the principles of justice , equity and good conscience , should pass an appropriate order .

passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all , for a period that was spent unproductively , while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed . It is necessary for us to develop a pragmatic approach to problem logging industrial relations . However , no just solution can be offered but the golden mean may be Arrived at . "

16. Considering the aforesaid legal principles to be followed and as observed by the Hon'ble Supreme Court inother number of cases for keeping number of such factors into consideration , i.e. , regarding the length of service , age and qualification , nature of employment etc. it is evident that in the present case the workman concerned had only worked for a year or so in the department prior to his date of retrenchment, i.e. , on 1-7-1989 . He was not also occupying any such permanent status or having got a regular appointment since he was a casual worker so employed by the management for different period between 1988 and 1992 in this regard . There is no dispute about the wages paid to him for the work done by him as casual worker till the said date of 30-6-1989 or for the work done after that date when he had been given some work by the management , i.e. , for the months of September , 1991 to July, 1992 for which he had been so admittedly paid by the management . It is also found that this reference has been made after more than 6 years from the date of 1-7-1989 when the dispute had so arisen between the parties . Apart from that it is also evident that more than 17 years or so has now elapsed since then and admittedly the workman has not contributed anything to the industry and so to burden it with the relief of full back wages or haff back wages is not called for even after holding the order of retrenchemnt to be illegal and void . The workman has also stated only that he was not gainfully employed elsewhere and could not get any job though he tried to procure it . There is no such fact in the pleading itself for this and there is no such evidence led by him for the same so that the management couldhave shown it otherwise by adducing its evidence in rebuttal in this regard .

14. In several other cases also the Hon'ble Supreme Court has held that payment of back wages is a discretionary power which has to be exercised keeping in view the facts and circumstances of each case and neither start -jacket formula can be evolved , nor a rule of universal application can be adopted [ vide P.G.I. of Medical Education and Research , Chandigarh v . Raj Kumar, (2001 ) 2 SCC 54: 2001 AIR SCW 77; Hindustan Motor v . Tapan Kumar Bhattacharya, (2002 ) 6 SCC 41 : 2002 AIR SCW 3008 ] . In Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005 ) 2 SCC 363: 2005 AIR SCW 377 the Hon'ble Apex Court held that when question of determination of entitlement of back wages comes up for consideration , prima facie , it is for the employee to prove that he had not been gainfully employed Initial burden is on the employee to show that he remained without any employment . In several cases , similar view has been taken by the Hon'ble Supreme Court in recent years. InM.P. State Electricity Board v. Jarina Bee , (2003 ) 6 SCC 141 : 2003 AIR SCW 3380 , it was observed that reinstatement in service and payment of back wages is not natural consequence of setting aside an order of dismissal . In Haryana State Co - op. Land Development Bank v. Neelam , (2005) SCC 91: 2005 AIR SCW 1439, it was stated that the aim and object of Industrial Disputes Act is to impart social justice to the workman but keeping in view his conduct. Payment of back wages , therefore , would not be automatic on entitlement of the relief of reinstatement .

17. Considering the case law on the point and applying the principles laid down there to the facts of the present case it is just and proper that instead of granting relief of reinstatement with back wages a lumpsum compensation of Rs . 35000/- may be awarded to the workman as it was so directed by the Hon'ble Apex Court in number of cases viz . , State of M.P. & Ors . V. Arjunlal Rajak (2006 AIR SCW 1128) , Nagar Mahapalika v . State of U.P.& Ors .(2006 AIR SCW 2497) , Haryana State Electronics Development Corporation Ltd. v. Mamni (2006 AIR SCW 2979) andMunicipal Council , Samrala v. Sukhwinder Kaur (AIR 2006 SC 2905 ) . The aforementioned amount shall be paid tobe workman within a month from the date this Award becomes enforceable , failing which he will be entitled to interest thereupon @ 6 % per annum till the date of payment.

C. P. MISHRA , Presiding Officer

Dated : Kolkata , the 11th July, 2007

15. From the above cases , it is clear that no precise formula can be adopted nor ' Cast iron rule ' can be laid down as to when payment of full back wages should be allowed by the Court or Tribunal . It depends upon the facts and circumstances of each case . The approach of the Court/Tribunal should not be rigid or mechanical but flexible and realistic . The court of Tribunal dealing with cases of industrial disputes may find force in the ocntention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law . In such cases obviously , the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service . While considering and determining the second question, the Court or Tribunal 5240

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

नई दिल्ली , 19 जुलाई, 2007

का. आ. 2244. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार रिचर्डसन् एंड क्रुड्‌डास ( 1972 ) लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण नं.- II, मुम्बई के पंचाट ( संदर्भ संख्या सीजीआईटी -2/32 ऑफ 2001 ) को प्रकाशित करती है, जो केन्द्रीय सरकारको 19-7-2007 को प्राप्त हुआ था ।

[सं. एल -42011 /69/1999- आई आर (डी यू) ] सुरेन्द्र सिंह , डेस्क अधिकारी New Delhi , the 19th July, 2007

S.O. 2244. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the award (Ref. No. CGIT- 2/32 of 2001 ) of the Central Government Industrial Tribunal- curn-Labour Court No. II , Mumbai as shown in the Annexure in the Industrial Dispute between the employees in relation to the management of Richardson & Cruddas ( 1972) Ltd. and their workmen , which was received bythe Central Government on 19-7-2007.

[No. L-42011 /69/1999 - IR (DU) ]

SURENDRA SINGH, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL NO. 2 AT MUMBAI

PRESENT

A. A. LAD, Presiding Officer Reference No. CGIT - 2/32 of 2001 Employers in Relation to the Management of RICHARDSON & CRUDDAS LTD. , 1972 TheGeneral Manager ,

Richardson & Cruddas ( 1972) Ltd. , Mulund (W), Mulund Works , L.B.S. Marg ,

Mumbai 400 080 .

And

TheirWorkman

252, Janta Colony, Ramnarayan NarkerMarg, The President , Association of Engineering Workers , Ghatkopar(E) ,

Mumbai-400077.

APPEARANCES

Forthe Employers

: Mr. S. Z. Chowdhary Advocate

For the Workman

Ms. K.N. Samant Advocate

[PART II-SEC. 3(ii ) ] Date of passing of Award : 5th June, 2007

AWARD

1. The Government of India , Ministry of Labour by its Order No. L - 42011 /69/99/IR (DU) dated 08-03-2001 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 dispute to this Tribunal for adjudication:

"Whether the action of the management of Richardson& Cruddas ( 1972) Ltd. , Mumbai by illegal and unjustified deductions of wages of the workmen (Listenclosed) from Shop No. 2 in the months of July and August , 1994 ís legal and justified ? If not, to what relied the workman is entitled ? " Name

S. No. No.

1254 P. B. Pawar

V. R. Hotkar

2038

L. N. Bhuvad

2067

3..

2071 A. C. Vetal

H. V. Tare

2074

J. R. Sharma

2093

Chandrabhan Rao

2096

N. R. Votkar

2134

R. B. Das

2103

P. S. Chavan

2128

10.

R. K. Nirbhavne

2112

11.

S. J. Bhosle

1379

12.

T. M. Thakur

2007

13.

2024 A. J. Bhosale

14.

T. Sevaram

2068

15.

G. B. Kulthe

2123

16.

T. A. Bhurbar

2128

17.

K. J. Yadav

2176

18.

2013 C. L. More

19.

D. G. Nalawade

20. 2086

21. 2129 P. M. Shelar

2029

22.

K.G. Nayak

2118 S. T. Shinde

23.

B. P. Gaikwad

2087

24.

A. C. Akre

25. 1259

R. S. Pal

2185

26.

2178 S. G. Naik

27.

1401

28.

G.S. Sing

R. B. Zhore

29. 2159

2157

30.

S. V. Dorugade

2161 .

31.

D. B. Ghadigaokar

2079 R. Samuel

2133

33.

J. M. Suryavanshi

R. P. Thakur

2180

34.

S. Madhavrao

35. 1415 [ भाग II-खण्ड 3 (ii) ]

Name

S. No. No.

36.

1416 M. Lingraj

1162

37.

R.G. Yadav

2058

38.

R.S. Lohar

39. 2114 R. Bhalerao

2108

40.

A.D. Mulani

41. 2127 R.K. Kadam

42.

2165 B.S. Jangam

43.

2160 V.S. Surve

44.

2070 M.H. Bhosale

45.

2084 A.S. Gawade

46. 2088 P.K. Shejwal

47. 2089 T.K. Ghadi

48. 2053 H.S. Yadav

2131

49.

M.R. Bhilare

50.

2043 G.T. Manc

51.

2094 A.L. Pedneker

52.

1339 V.A. Ghadge

53.

2039 A.Y. Madne

2132

54.

K.S. Joshi

55.

1371

S.D. Mane

56.

2110 P.B. Yadav

2. Claim Statement is filed by President of the Union on behalf of the workman involved in the reference challenging the transfer order of the workman working in shop No. 2 to shop No. 1 saying not legal and justifiable and requesting to turn down the action of the first party of deducting the wages of the workman involved in the reference deducted on the principle of ' no work no pay ' and request to quash and set aside with a direction to pay all that to the workmen involved in the reference .

3. This is objected by first party by filing Written Statement at Ex- 10 justifying its action of deduction of salary by following principle of ' no work no pay' .

4. Issues were framed at Ex- 13 .

5. Meanwhile Second Party filed purshis at Ex.35 intimating that they do not want to pursue the issue involoved in the reference . Hence the order:

ORDER VideEx. 35 reference is disposed of:

Date: 05-06-2007

A.A. LAD, Presiding Offcer

5241

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

Hence it is humbly prayed the above reference may be disposed off as withdrawn . The Union is authorizing Smt. Kunda Samant , Advocate , to withdraw the above reference on behalf of the Union .

Mumbai Dated: 21-2-2007

P. N. SAMANT, President, 2nd PartyUnion नई दिल्ली, 19 जुलाई , 2007

का.आ. 2245.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबुद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , चैन्नई के पंचाट ( संदर्भ संख्या 51/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था । [सं. एल-12012/365/98- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 19th July, 2007

S.O. 2245.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref . No. 51/ 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 Government on 19-7-2007 .

[No. L- 12012/365 /98 - IR (B - I) ] AJAY KUMAR, Desk Officer ANNEXURE

BEFORE THE CENTRAL GOVERNMENT be INDUSTRIAL TRIBUNAL- CUM -LABOUR COURT, CHENNAI

Wednesday, the 31st January , 2007 PRESENT

K. JAYARAMAN, Presiding Officer Industrial Dispute No. 51/2004 [Principal Labour Court CGID No. 67/99] Inthe matter of the dispute 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 of State Bank of India and their workman)

Ex. No. 35

BEFORE C.GLT. COURT NO. 2 HON'BLE MEMBER, MUMBAI REFERENCE (IT) NO . 32 OF 2001 M/ s. Richardson & Cruddas ( 1972) Ltd. AND ... 1stParty

2nd Party MAY IT PLEASE THIS HON'BLE TRIBUNAL Association ofEngineering Workerş

The 2nd Party Union humbly submits that the concerned majority of the workmen have accepted V.R.S. and are no more employees of the First Party and the remaining few workman are not interested in pursuing the Reference and hence the issue involved does not survive .

BETWEEN

S. Durairaj ( deceased)

And : I Party/Petitioner The Assistant General Manager ,: II Party/Management State Bank of India , Z.O. , Madurai .

APPEARANCES

Forthe Petitioner : Sri V.S. Ekambaram,

Authorised Representative Forthe Management : Mr. R. Krishnamachari , Advocate 5242

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

AWARD

The Central Government, Ministry of Labour vide OrderNo. L - 12012/365/ 98 - IR (B - I ) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Prinicpal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 67/99 and issued notices to both parties . But , the Petitioner has not filed the Claim Statement before the Tamil Nadu Principal Labour Court . Afterthe 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. 51/2004 and notices were issued to both parties and the Petitoner has not filed the Claim Statement .

2.The Schedule mentioned in that order is as follows :-

"Whether the demand of the workman Shri S. Durairaj , wait list No. 334 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 ? "

[PART II-SEC . 3 (іі )) 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 Governmenton 19-7-2007.

[No. L- 12012/492/98 - IR (B - I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007.

PRESENT

K. JAYARAMAN, Presiding Officer INDUSTRIAL DISPUTE No. 35/2004 [Principal Labour Court CGID No. 333/99] (Inthe matter of the dispute 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 theManagement of State Bank of India and their workmen) .

BETWEEN

: I Party/Petitioner Shri K. Sukumar

And

The Assistant General Manager , II Party/Management State Bank of India , Z.O. Coimbatore .

APPEARANCES

: Sri V.S. Ekambaram, For the Petitioner

Authorised Representative For the Management

3. When the matter was taken up for hearing , it is reported by the representative of the Petitioner that the Petitioner died on 20-2-04 and filed a petition to implead legal heirs of the deceased Petitoner . Since I have given a finding in the LR petition vide I.A. order No. 205/2005 dated 2ndNovember, 2005, that LR application is not maintainable and since no orders were obtained from higher forum , I find the claim is abated and the Petition is dismissed without any costs .

4. Thus the reference is disposed of accordingly . K.JAYARAMAN , Presiding Officer नई दिल्ली, 19 जुलाई , 2007

का.आ. 2246- 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 चैन्नई के पंचाट ( संदर्भ संख्या 35/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था। सं. एल-12012/492/98- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी NewDelhi , the 19th July , 2007

S.O. 2246. In pursuance of section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the award (Ref . No. 35/2004) of the Central Government Industrial Tribunal-

: M/ s . K. Veeramani , Advocates

AWARD

TheCentral Government , Ministry of Labour vide OrderNo. L- 12012/492/ 98 - IR(B - P) dated 12-03-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 333/99 and issued notices to both parties . Both sides entered apperance 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 I.D. No. 35/2004.

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri K. Sukumar , wait list No. 400 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 entitled ?" 5243 [भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

3. The allegations of the Petitioner in the Claim Statement are briefly as follows:-

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 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 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 andwithout 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 . 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 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 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 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 whentheir 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 said settlements became subject matter of conciliation proceedings and minutes 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 Petitioner was wait listed as candidate No. 399 in waitlist 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 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 tum around and claim appointment . Such of those temporary employees who were appointed were engaged forfo 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 temporary employees , who were engaged for 240 days were to be considered and under category ( B) the temporary 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 temporary basis at Steel Plant branch from 2-09-1991 . 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 settlement under section 18 ( 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the said 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 initially worked as a class IV employee . From 02-09-1991 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Mettur branch , the 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 31-3-97 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 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 31.3.97 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 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 tothe 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 25G and

i 5244

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20 , 1929

[PART II-SEC . 3 ( ii) ]

Respondent/Bank imposed total ban 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 workmenwith 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 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 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-

(1) "Whether the demand of the Petitioner in Wait ListNo.400 forrestoring 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 hearing, it is reported by the representative of the Petitioner that he is not appearing for the Petitioner and the Petitioner also has not appeared before this Court for further proceedings and hence, the Petitioner was called absent and set exparte .

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 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 waitlist and it was also agreed that waitlist was to lapse 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 implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem wasdue 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 of 705 wait listed candidates, 211 temporary employees were appointed and since the Petitioner was wait listed at 399 he was not appointed. The said settlements were bona fidewhich were the only workable solution and isbinding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and hisclaim 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 has no jurisdiction to entertain such plea. It is not correctto say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correctto 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 temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawnfor appointment ofdaily 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 listfor 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 .

9. In this case, the Petitioner alleged that he was appointed by Respondent/Bank during 1991 and worked as a temporary messenger and all of a sudden, on 31-3-97 hewas terminated 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 I.D. 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 are not established before this Tribunal , 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 .

K. JAYARAMAN , Presiding Officer 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 messenger post in the subordinate cadre of the Responderit/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 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 5245 भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20 , 1929

[ भाग II-- खण्ड 3 ( ii ) ]

नई दिल्ली, 20 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 I.D.No. 242/2004.

2. The Schedule mentioned in that order is as follows:

का.आ. 2247.-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 242/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/450/1998- आई आर ( बी- I ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th July , 2007

"Whether the demand of the workman Shri D. Natarajan, wait list No.716 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 Claim Statement are briefly as follows:

S.O. 2247.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 242/ 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 Government on 20-7-2007 .

[No. L- 12012/450/ 1998 - IR ( B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday , the 31st January , 2007

PRESENT

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 242/2004

(Principal Labour Court CGID No. 169/99)

(Inthe matter of the dispute for adjudication under clause (d) ofsub- 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

: IParty/Petitioner

SriD. Natarajan

AND

TheAssistant General Manager , II Party/ Management State Bank of India , Z. O. Chennai .

APPEARANCE

: Sri V. S. Ekambaram ,

For the Petitioner

Authorised Representative .

: M/s . K. Veeramani ,

For the Management

Advocates .

AWARD

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 temporary basis at Ambur branch from 27-05 1987. 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 settlement under Section 18 ( 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 1985-86 were classified in the settlement wasunder 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 held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Ambur 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 initially worked as a class IV employee . From 27-05-1987 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Ambur 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 1. The Central Government Ministry of Labour, vide Order No. L- 12012/450/98 - IR (B - I ) dated 12-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 169/99 and issued notices

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[PART II-SEC . 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 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 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 25G & 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 wait 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. 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 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 all attendant benefits .

17-11-87, 16-07-88,07-10-88,09-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3) of1.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 wait listed as candidate No.716 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 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 (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 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 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 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 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 of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listedat 716 he was not appointed . The said settlements werebonafide 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 werenotquestioned 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 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 [भाग II- खण्ड 3( ii) ]

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5247

Point No. 1 :-

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 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 by Employment 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 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 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 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 absorbtion 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 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 .

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 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 false to allege that 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 :-

(i) "Whether the demand of the Petitioner in Wait List No. 716 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 ?"

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Ex.M10 was prepared on 2-5-1992 but there is no pleading inthe Counter Statement with regard to this wait list . Further theHon'bleHigh 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 wasconcerned 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 whowere paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent arenot 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 14 of Constitution of India. ' Further , the averment of MW1 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 . It is further contended on behalf of the Petitioner 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 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 of absorption. 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 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. 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. M 10 has been prepared in violation of instructions and ceasedto have the credibility attached to the wait list . Above all , Ex . M 1 was not produced at the time of conciliation proceedings held during the year 1997-98 held atChennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before thisTribunal 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 onabsorption oftemporary employees , the expression that they were 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 OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted only forthe 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 ofretrenched workmen . Therefore, the contention of the Respondent/Bank that the Petitioner has no valid and enforceable rigat 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 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 thecross-examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking hisfuture with the settlements . Further, Clause 1 of Ex . M1 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 I is illegal . Clause 1 (a) of Ex.M1 provides an opportunityto persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash cooljes , water boys , sweepers etc.for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengeria. work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copyofwhichis marked as Ex . W8. Further , the appointment ofdaily wagebasis 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/Bank on casual basisshould 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 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 preparedonly 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 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.MI , M3 and M4 respectively But , when MW ! 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 , accordingto MW1 wait list under 5249

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[ भाग II- 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 Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 andtherefore , 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 inthe connected I.Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II 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 onlywhen the workmen worked with hammer , sickle or pen butmust 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 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 . 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 240days and more in a continuous period of 12 calendar months andthey are in age group of 40 to 50 years and for no fault 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 by 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 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 concealed the material facts that the Petitioner was wait listed as per to take them out of the principal clause 2 (oo) of the I.D. 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 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 that "to 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 workmen is illegal . " Learned representative further contended that Ex.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 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, 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 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 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 forthe averment of MW1 . 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 settlement on absorption of temporary employees . Though theRespondent/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 Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 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/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 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 and it constitutes post reference period and hence evidence 5250

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[PART II-SEC. 3( ii) ]

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 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 SC 469 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 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 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 mustbe 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 , 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 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 inservice 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 made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

length ofhis engagement and could not be absorbed as he was positioneddown 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/Bank and the federation were bonafidewhich were the only workable solution and isbinding 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 anyunion and the settlements were bank level settlements and operate throughout the country . Further, he relied on the rulings reported in 1991 ILJ 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 claim of 11 workmen 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 conciliation is vitiated by fraud , misrepresentation of coercion , the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 conciliationproceedings 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 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 rulings 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 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 second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even

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determination inthis 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 inan existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made inview 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 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 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 itwas ayearly panel expiring on 6-2-98 , we are of the opinion that the Respondents 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 ofthe 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 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 ofrefusingto 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 1998 LAB IC 1664 VAN SAG NATHAN 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 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 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 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 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 between the parties and with that object in view, itshould 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 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 .

1991 3 SCC 47 SHANKARSAN 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 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 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 HARYANAANDORS. 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 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 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 entered by a back door;

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THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929

only 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 ) 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 mandatory but only directory , onsufficient 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 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 costs .

15. Learned Senior Advocate further argued that even in recent 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 , 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 theCourt 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 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 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 willbe creating another mode ofpublic 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 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 FERTILIZERS (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 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 continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of oneunit 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 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 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. Thus , the Supreme Court set aside the orders oflower Courts. He further relied on the decision reported in1997 II 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 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 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 todecorating a still born baby. Under these circumstances , therewas 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 andthey have not appointed against any regular vacancy and they have only appointed in leave vacancies andtherefore , 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 daily wages . Under these circumstances , their disengagement from service cannot beconstrued to be a retrenchmerit 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 [ भाग II- खण्ड 3( ii) ]

5253 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20 , 1929

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 cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further , the representative for the Petitioner contendedthat 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 same relief.

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 an employee upon the expiry ofpurported period of probation would not arise ." Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itisnot 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 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 240days 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 Govt . 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 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.

K. JAYARAMAN , Presiding Officer

Witnesses Examined:

Forthe 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 entitled to claim regularisation ofhis 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 . Under such circumstances , it cannot be questioned by the Petitioner .

WW1 Sri D. Natarajan WW2 Sri V. S. Ekambaram

Forthe Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam

Documents Marked:-

Ex. No. Date

Description

W1 1-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-04-88 Xerox copy of the administrative guidelines Issued by Rspondent/Bank forimplementation ofEx .MI 3287 G1/07-17 [PART II-SEC. 3 ( ii) ] 5254

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929

Feb. 2005

W20

24-04-91

Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wail list No. 395 ofMadurai Circle .

Xerox copy of the circular of Respondent/Bank to all Branches regarding absorptions of daily wagers in Messenger vacancies .

13-02-95

W21

W4 01-05-91

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list.

Xerox copy of the advertisement in The Hindu on daily Wages based on Ex. W4.

09-11-92

W22

W5 20-08-91

Xerox copy of the Head Office circular No. 28 regarding Norms for sanctiion of Messenger staff.

Xerox copy of the advertisement on The Hindu extending Period of qualifying service to daily wagers .

09-07-92

W23

W6 15-03-97

Xerox copy of the Minutes of the Bipartitemeeting.

Xerox copy ofthe circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

09-07-92

W24

Xerox copy of the Settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms creation of parttime general attendants .

25-03-97 Xerox copy of the circular of Respondent/Bankto all Branches regarding identification of messenger vacancies and filling them before 31-3-97 .

09-07-06

W25

W8 Nil

Xerox copy of the lical Head Office circular about Conversion of part time employees and redesignate them as general attendants.

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work .

31-12-85

W26

W9 Nil Xerox copy of the service certificate issued by Ambur Branch .

15-05-91

W10

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

Xerox copy of the service certificate issuedby Ambur Branch .

Forthe Respondent/Management :-

30-06-93

W11

Xerox copy of the service certificate issued by Ambur Branch .

Description

Ex. No. Date

W12 Nil

Xerox copy of the settlement .

17-11-87

Xerox copy of the settlement.

16-07-88

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care & service conditions

Xerox copy of the settlement .

27-10-88

W13 Nil

Xerox copy of the settlement .

09-01-91

Xerox copy of the regerence book on Staff matter Vol. III consolidated upto 31-12-95.

Xerox copy of the settlement .

30-07-96

06-03-97

W14

M6 09-06-95 Xerox copy of the minutes ofconciliation proceedings.

Xerox copy of the call letter from Madurai zonal office For interview of messenger post-V. Muralikannan .

M7 28-05-91

06-03-97

W15

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-K. Subburaj .

M8 15-05-98 Xerox copy of the order in O. P. No. 2787/97 of High Court of Orissa .

06-03-97

W16

M9 10-07-99

Xerox copy ofthe call letter from Madurai ZonalOffice for interview of messenger post-J. Velmurugan .

Xerox copy ofthe order of Supreme Court in SLP No. 3082/99 .

17-03-97

W17

M10 Ni

Xerox copy of the service particulars- J.Velmurugan.

Xerox copy of the wait list of Chennai Module.

26-03-97

W18

Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

25-10-99

M11

31-03-97

W19

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

Xerox copy of the appointment order to Sri G. Pandi .

[ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

5255 नई दिल्ली , 20 जुलाई , 2007

referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 172/99 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 I.D. No. 245/2004.

का.आ. 2248.-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 , चेन्नई के पंचाट ( संदर्भ संख्या 245/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

2. The Schedule mentioned in that order is as follows:

[सं. एल-12012/462/ 1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

NewDelhi , the 20th July, 2007

"Whether the demand of the workman Shri G. Sridarraj wait list No. 394 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 Claim Statement are briefly as follows :

S.O. 2248. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award ( Ref. No. 245/ 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 Government on 20-7-2007 .

[No. L- 12012/462/ 1998- IR (B - I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January , 2007

PRESENT:

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 245/2004 (Principal Labour Court CGID No. 172/99)

(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) , betweenthe Maanagement of State Bank of India and their workmen)

BETWEEN

Sri G. Sridarraj

: I Party/Petitioner

AND

The Assistant General Manager , II Party/Management State Bank of India, Z. O. Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative

For the Management : M/s . K. Veeramani , Advocates

AWARD

1. The Central Government Ministry ofLabour, vide Order No. L- 12012/451 /98 - IR (B- I ) dated 12-2-1999 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 temporary basis at AFS Tarnvaram branch. The Petitioner was orally informed that his services were no more required. The non -employment of the Petitioner andothers 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 settlement under section 18 ( 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the AFS Tambaram 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 initially worked as a class IV employee . The Petitioner has been working as a temporary messenger and sometime performing work in other 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 [PART II-SEC. 3 (ii)) THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

5256

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 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 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 stand that the service and the number of days workedby Petitioner were treated as of no consequence, since according to the Respondent/Bank , it engagedthe 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 interviewdo 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 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. tothe temporary workmen which amounts 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 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 .

employees who are claiming permanent absorption and whentheir 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 30-7-1996 . The said settlements became subject matter of conciliation proceedings and minutes 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 Petitioner was wait listed as candidate No. 394 in wait list ofZonalOffice, 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 retrenchment provisions referred to above , cannotturn around and claim appointment. Such ofthose 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 (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 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 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 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 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 of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listedat 720 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 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 has no jurisdiction to entertain such plea. It is not correct to say that documents 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 itselfis 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 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 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. 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 [ भाग II- खण्ड 3 ( ii) ]

before thePetitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanentmessenger .As per settlements , vacancies upto 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 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.

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 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 theRespondent/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 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. 394 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment

5257

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

thereupon as temporary messenger is justified?"

(ii) "To what relief the Petitioner 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 inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed interms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate 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 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 the workmen concernedandwhile 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 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 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 .

[PART II SEC. 3 (ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929

Petitioner has no valid and enforceable right for appointment as Section 25G and 25H are very much applicable tothe Petitioners who are retrenched messengers 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 I.D.Act providing for retrenchment is not enacted only for thebenefit ofthe workmen to whom Section 25F applies butforall cases of retrenchment . Therefore, the application of Section 24H cannot be restricted only to one category ofretrenched workmen . Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable night 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 timeto 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 thecross- examination will clearly show how the bank has givena rawdeal to the Petitioner from the beginning linking hisfuture with the settlements . Further , Clause 1 of Ex . M1 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 1 is illegal. Clause 1 ( a) ofEx.M1 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 of the guidelines mentioned in Reference Book on Staffmatters , 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 eligible categories is not valid . Therefore, these persons who were engaged by theRespondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals weregivenmore 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 ofwaiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for eachmodule 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 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 MW1 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 to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter 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, 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 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 treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment ofMW1 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 bythe Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex. M10 comparises of both messengerial and non - messengerial candidates. Whilethe 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 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 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.7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published inThe 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. M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list. Above all , Ex . M1 was not produced at 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 :

1 [ भाग II- खण्डः 3 ( ii ) ]

5259 भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent/Bank it wasimplemented 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 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 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 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 I.Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II 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 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 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 Petitioners were in employment as sub staff in early 1980s but were denied further engagement onaccount 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 of 40 to 50 years and for no fault 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.

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 clause 2 ( oo) of the I.D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which isstill 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 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to 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 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 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 , 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 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 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 averment of MW 1. Therefore , thetermination of the Petitioner who was in regular service ofthe Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporaгу 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 claimedby the Respondent/Bank which says only with regard to modification of Ex. Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 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 , theydo 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 hadbecome apparent that they have no personal knowledge

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

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 onall 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 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 SC 469 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 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 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 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, 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 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 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 contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But, as against this on behalf ofthe 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 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 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 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 as he waspositioned 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 Employment Exchange 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 isbinding 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 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 ILLJ 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 claim of 11 workmen 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 conciliation is vitiated by fraud, misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERSwherein 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 union willbe binding on all workmen of the establishment, even thosewho belong to the minority union which had objected to the same . To that extent, it departs 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." Itfurther 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 rulings 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 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 5261 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II-खण्ड 3 ( ii ) ]

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 nature of pleading of the Petitioner to find out the exact nature ofdispute 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 rulings reported in 1998 LABIC 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 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 attempttoconsider 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 argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 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 manner which would prolong the industrial adjudication. TheLabour 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 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.

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.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination inthis 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 select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number 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 19976 SCC 584 SYNDICATE BANK & ORS VS. SHANKAR 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 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 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 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 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 . VS. PIARA SINGHANDOTHERS 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 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 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

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THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929

these circumstances , 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 , their disengagement is not 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 I.D. Act retrenchment procedure following principle of ' last 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 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 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 costs .

15. Learned Senior Advocate further argued that even in recent 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 , 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 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 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 . 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 shouldbe 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 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 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 entered by a backdoor; (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 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 continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of oneunitmaynot 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 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 . 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 II SCC 1 ASHWANI KUMAR AND OTHERS VS. 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,If the candidate concerned is appointed in an 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 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 contendedthat 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 VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under [ भाग II- खण्ड 3 ( ii) ]

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 Fertilizers Ltd. and Others Vs. Somvir 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 employee uponthe 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 . 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 would be void in law. " Further , in 2006 2 LLN 89 Madhya Pradesh State Agro Industries Development Corporation Vs. S.C. Pandey whereinthe 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 ofthis 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 . "

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भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

settlement and they have not aileged that settlement was not a bona fide in nature or it has been arrived at on account ofmala 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 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 cannot 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 same relief.

Point No. 2:

The next pointto be decided in this case is to what relief the Petitioner is entitled ?

20. In viewof 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. K. JAYARAMAN, Presiding Officer Witnesses Examined:

Forthe 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 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 estoppedfrom 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 . Under such circumstances , it cannot be questioned by the Petitioner .

WW1 Sri G. Sridarraj WW2 Sri V. S. Ekambaram Forthe Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam Documents Marked :-

Ex . No. Date

Description

1-8-88

W1 Xerox copy of the paper publication in daily Thanthi based on Ex . MI .

[PART II SEC . 3 (ii)] 5264

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

17-3-97

W19

W2 20-4-88

Xerox copy of the service particulars- J. Velmurugan.

26-3-97

W20

Xerox copy of the administrative guidelines issued by Respondent/Bank . for implementation ofEx .M1.

Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W3 24-4-91

31-3-97

W21

Xerox copy of the appointment order to SriG. Pandi .

Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

Feb. 2005

W22

W4 1-5-91

Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

Xerox copy of the advertisement in The Hindu on dailywages based on Ex . W4 .

13-2-95

W23

W5 20-8-91

Xerox copy of the Madurai Module Circular letter about engaging temporary employees fromthe panel of wait list.

Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

9-11-92

W24

W6 15-3-97

Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

9-7-92

W25

W7 25-3-97

Xeroxcopy ofthe minutes of the Bipartite meeting.

9-7-92

W26

Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

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 .

7-2-06

W27

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work .

W9 27-4-84 Xerox copy of the service certificate issued by AFS Tambaram Branch .

Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

27-4-84

W10

31-12-85

W28

Xerox copy of the service certificate issued by AFS Tambaram branch.

Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre. 27-11-84

W11

Xerox copy of the service certificate issued by Air Cargo Complex branch .

For the Respondent/Management : ---

27-2-93

W12

Date

Description

Ex. No.

Xerox copy of the service certificate issued by HVF Avadi branch .

Xerox copy of the settlement .

17-11-87

19-6-97

W13

Xerox copy of the service certificate issued by HVF Avadi branch.

Xerox copy of the settlement .

16-7-88

W14 Nil

Xerox copy of the settlement .

27-10-88

9-1-91

Xerox copy of the settlement .

Xerox copy of the settlement.

30-7-96

9-6-95

Xerox copy of the administrative guidelines in reference book on staff matters. issued by Respondent/Bank regarding recruitment to subordinate care& service conditions .

Xerox copy ofthe minutes of conciliation proceedings.

W15 Nil

M7 28-5-91 Xerox copy of the order in W.P. No.7872/91 .

Xerox copy of the Reference book on staff maters Vol . III consolidated upto 31-12-95.

M8 15-5-98

6-3-97

W16

Xerox copy of the order in O. P. No. 2787/97 of High Court ofOrissa .

M9 10-7-99

Xerox copyofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

6-3-97

W17

M10 Nil Xerox copy of the wait list of Chennai Module.

Xerox copy of the call letter from Madurai zonal office For interview of messenger post-K. Subburaj .

25-10-99

M11

6-3-97

W18

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

[ भाग II- खण्ड 3 ( ii ) ]

5265 भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20 , 1929

नई दिल्ली, 20 जुलाई , 2007

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 I.D.No. 240/2004.

2. The Schedule mentioned in that order is as follows:-

का.आ. 2249.-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 240/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/469/1998- आईआर( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th July, 2007

"Whether the demand of the workman Shri D. Ramanakumar, wait list No. 511 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 Claim Statement are briefly as follows :-

S.O. 2249. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 240/ 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 Goverriment on 20-7-2007.

[No. L- 12012/469/1998 - IR(B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday , the 31st January, 2007

PRESENT:

Shri K. Jayaraman, Presiding Officer Industrial Dispute No. 240/2004

[Principal Labour Court CGIT No. 167/99 ]

(In he matter of the dispute 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 theManagement of State Bank of India and their workmen .)

BETWEEN

Sri D. Ramanakumar

: I Party/Petitioner

AND

TheAssistant General Manager , : II Party/Management State Bank of India , Z. O. , Chennai.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

FortheManagement : M/s. K. Veeramani , Advocates . AWARD

1. The Central Government Ministry ofLabour , vide Order No. L - 12012/469/98 - IR (B - I) dated 12-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken thedispute on its file as CGID No. 167/99 and issued notices to both parties. Both sides entered appearance and filed

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 temporary basis at Guindy branch from 02-06-1982 . 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 filedby 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 settlement under Section 18 ( 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Guindy 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 orallyto join at the branch where he initially worked as a class IV employee . From 02-06-1982 , the Petitioner has been working as a temporary messenger and some time performingwork in other branches also . While working on temporary basis in Guindy 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 Tribunal for [PART II-SEC . 3 ( ii ) ] 5266

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 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 Government 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 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 bywhich 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 25G & 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 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. tothe temporary workmen which amounts 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 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

The said settlements became subject matter of conciliation proceedings and minutes 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 Petitioner was wait- listed as candidate No. 508 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 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 ( 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 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 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 offdate 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 implementedthe 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 of 744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listed at 508 he was not appointed. The said settlements were bona fide which were the only workable solution and isbinding 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 (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 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 temporary 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government foradjudication 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 I.D. Act in lieu of provisions of law, retrenchment and implementedby 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. 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 whentheir 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 and 30-7-1996.

[ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

5267

Point No. 1:

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 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 .

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe 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 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 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 toprotect 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 à 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 . 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 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 .

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 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 false to allege that 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 :

(0) "Whether the demand of the Petitioner in Wait List No. 511 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 ? "

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

MW1 wait list under Ex . M10 was prepared on 2-5-92but there is nopleading in the Counter Statement with regard tothis 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 paid wages daily on mutual agreement basis . In such circumstances , asrightly 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 treat one class andtheir action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attemptto wriggle out the illegality committed or perpetrated bythe Respondent/Bank by cornbing equals with unequals . Itisfurther contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex . M10 comparises 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 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 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 projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released published even after the Court order in WMPNo. 11932/91 in W.P. No. 7872/91 directing the Respondent/Bankto 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 thesethings , 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 . M1 was not produced at 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 before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave 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 I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applies butfor all cases of retrenchment. Therefore , the application ofSection 25H cannot be restricted only to one category ofretrenched workmen. 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 settlements on absorption and which are statutory in character . Further , a combined study of Ex. Ml and the averments of MW1 and MW2 and their testimonies during thecross-examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking hisfuture with the settlements . Further, Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into 'A , B and C' , but this categorization of ' A, B&C' isquite opposed to the doctrine of' last come-first go'or ' first come last go ' and therefore, the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex. M1 provides an opportunityto 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 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/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals weregivenmore 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 waitlist 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 say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based onthe 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 , accordingto 5269 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

post 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 25B and 25F of the Industrial DisputesAct , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 andtherefore, 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 inthe connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid Holidays as days on whichthe 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 II 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 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 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 submittedtheir 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 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 are in age group of 40 to 50 years and for no fault 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 Respontent/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 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 ID. 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 Petitioner was wait listed as per 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 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 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to 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 workmen is illegal ." Learned representative further contended that Ex . M 10 wait list has not been prepared in accordance with principle ofseniority 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 Ex . M10 which has been drawn up is contrary to law and alsobad 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 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 to 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 the averment of MW ) . Therefore , the termination of the Petitioner who was in regular service ofthe Respondent/Bank is arbitrary , malafide 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 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 Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6. Though the Respondent/Bank produced Ex. M7 and M11 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 , theydo 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 hadbecome apparent that they have no personal knowledge about the settlements which are marked as Ex . Ml to M5. Above all , though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it wasimplemented only in the year 2001 and it constitutes

3287 G1/07-19 5270

[PAR: 11-SEC. 3 (ii)] THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 2015

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 in the terms of the settlement, it must be binding on the contesting workmern also ." He further relied on the rulings reported in AIR 2000 SC 469 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 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 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 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 same.

11. Learned counsel for the Respondent further contended thatthough 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 . 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 inthe Claim Statement .

length of his engagement and could not be absorbed as he was posted 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 Employment Exchange is incorrect and the allegation that heworked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into bythe Respondent/Bank and the Federation were bona fide which were the only workable solution and isbinding on the Petitioner. The Petitioner accepted the settlement and laccordingly 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 therulings reported in 1991 ILLJ 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 claim of 11 workmen 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 conciliation is vitiated by fraud, misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 union will be binding on all workmen of the establishment , even thosewho belong to the minority union which had objected to the same . To that extent, it departs 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 ." Itfurther held that " there may be exceptional cases , where there maybe allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the purse of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings 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 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 second category made with a recognised majority union has extended application as it

willbe binding on all workmen of the establishment . Even

[ भाग II- खण्ड 3 (ii) ]

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 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 1998 LABIC 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. " Не 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 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 argued that in Express Newspapers P. Ltd.'s case reported in AIR 1993 SC 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 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 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 .

inthis 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 select list on reduction in number of vacancies was made inview ofthe 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 removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Courthas 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 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 itwas a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents 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 ofthe 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 held that"candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying onall 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 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. 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 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 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 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept 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. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination 5272

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[PART II SEC . 3 (ii ) ]

stretched to 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 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 mandatory butonly 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 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 costs .

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 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 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 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 thatin 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 . 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 11SCC 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 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 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 reglarising 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 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 ." 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 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 disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be

15. Learned Senior Advocate further argued that even inrecent decision reported in 20064 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, 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 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 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 . 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 shouldbe 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 rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to beclarified 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 [ भाग II- खण्ड 3 ( ii ) ]

selection as envisaged by relevant rules " . Further , in CDJ 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 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 . 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 of India would be void in law . " Further , in 2006 2 LLN 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 240days 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 policydecisions of the Govt . 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 , 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 settlernents entered into between the Respondent/Bank and Federation and since they have not questioned the waitlist 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 . Under such circumstances , it cannot be questioned by the Petitioner.

5273

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

not a bona fide in nature or it has been arrived at on account ofmala 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 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 cannot 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 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 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 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.

PointNo. 2:

The next point to be decided in this case is to what relief the Petitioner is entitled?

21. Thus, the reference is answered accordingly.

K. JAYARAMAN, PresidingOfficer Witnesses Examined :-

For the Petitioner WW1 Sri S.Ramanakumar WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam Documents Marked:-

Ex. No. Date

Description

W1 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-814-88 Хегох copy of the administrative guidelines issuedby Respondent/Bank forimplementation ofEx .M1.

[PART II-SEC. 3 (ii) ] 5274

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

17-03-97

W22

W3 24-04-91

Xerox copy of the service particulars- J. Velmurugan.

26-03-97

W23

Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wages in Messenger vacancies .

Xerox copy of the letter advising selection ofparttimeMenial-G. Pandi .

W4 01-05-91

31-03-97

W24

Xerox copy of the advertisement in The Hindu on dailyWages based on Ex. W. 4.

Xerox copy of the appointment order to Sri G. Pandi .

W5 20-08-91

Feb. 2005

W25

Xerox copy of the advertisement in The Hindu extending Period of qualifying service to daily wagers .

Xerox copy of the pay slip of T. Sekar forthe month of February , 2005 wait list No. 395 ofMadurai Circle .

W6 15-03-97

13-02-95

W26

Xerox copy of the circular letter of Zonal Office, Chennai About filling up of vacancies of messenger posts .

Xerox copy of the Madurai Module Circular letter about Engaging temporary employees fromthe panel of wait list .

W7 25-03-97

09-11-92

W27

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff.

Xerox copy of the circular of Respondent/Bank to all Branches regarding indentification of messenger vacancies And filling them before 31-3-97.

09-07-92

W28

Xerox copy of the minutes of the Bipartite meeting.

W8 Nil

09-07-92

W29

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

W9 08-03-85

Xerox copy of the settlement between Respondent/Bank and All India Staf! Bank of India Staff. Federation for implementation of norms -creation ofpart time general attendants .

Xerox copy of the service certificate issued by Guindy Branch .

07-02-06

W30

31-03-86

W10

Xerox copy of the service certificate issued by Guindy Branch.

19-06-87

W11

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 Kodambakkam branch .

W3131-12-85

30-08-91

W12

Xerox copy of the service certificate issued by Mannady Branch.

16-04-93

W13

Xerox copy of the local Head Officer circular about Appointment of temporary employees in subordinate cadre.

Xerox copy of the service certificate issued by Anna University Branch .

Forthe Respondent/Management : ---

18-03-96

W14

Ex. No. Date

.Description

Xerox copy of the service certificate issued by Guindy branch .

11-04-97

Xerox copy of the settlement.

17-11-87

w15

Xerox copy of the service certificate issued by Gundy branch.

Xerox copy of the settlement.

16-07-88

01-07-89 Xerox copy of interview call letter.

W16

Xerox copy of the settlement .

27-10-88

W17 Nil

Xerox copy of the settlement.

09-01-91

Xerox copy of the settlement .

30-07-96

M6 09-06-95

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care& service conditions .

Хегох copy of the minutes of conciliation proceedings.

W18 Nil

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91 .

Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-1995.

M8 15-05-98

06-03-97

W19

Xerox copy of the order in O. P. No. 2787/97 ofHigh Court ofOrissa .

M9 10-07-99

Xerox copy of the call letter from Madurai zonal office For interview of messenger post-V. Muralikannan .

Xerox copy ofthe order of Supreme Court inSLP No. 3082/99 .

06-03-97

W20

M10 Nil Xerox copy of the wait list of Chennai Module.

Xerox copy of the call letter from Madurai zonal office For interview of messenger post-K. Subburaj .

06-03-97

W21

25-10-99

M11

Xerox copy of the call letter from Madurai zonal office For interview of messenger post-J. Velmurugan .

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

[ भाग II- खण्ड 3 ( ii ) ]

नई दिल्ली , 20 जुलाई , 2007

का.आ. 2250.-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 241/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था । [सं. एल -12012/455 / 1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 20th July , 2007

S.O. 2250. In pursuance of Section 17 of the Industrial Disputes Act, 1.947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 241 / 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 Government on 20-7-2007.

[No. L- 12012/ 455 / 1998 - IR (B - 1) ) AJAY KUMAR , Desk Officer

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, CHENNAI

Wednesday, the 31st January , 2007

PRESENT

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 241/2004 (Principal Labour Court CGID No. 168/99 ) (Inthe matter of the dispute 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 theManagement of State Bank of India and their workmen)

BETWEEN

Sri S. Panneerselvam

5275

भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20 , 1929

referred this dispute earlier to the Tamil Nadu Principal LabourCourt, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 168/99 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 I.D.No. 241/2004.

2. The Schedule mentioned in that order is as follows:

"Whether the demand of the workman Shri S. Panneerselva , wait list No.455 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 Claim Statement are briefly as follows:-

: I Party/Petitioner

AND

The Assistant General Manager ,: II Party/Management State Bank of India , Z. O. Chennai .

APPEARANCE

Forthe Petitioner

: Sri V. S. Ekambaram , Authorised Representative .

For the Management : M/ s . K. Veeramani ,

Advocates.

AWARD

1. The Central Government Ministry ofLabour , vide OrderNo. L - 12012/455/ 98 - IR ( B - I) dated 12-02-1999 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 temporary basis at Ayanavaram branch from 01-11-1985 . 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 settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation andthe 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Ayanavaram 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 initially worked as a class IV employee . From 01-11-1985, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working ontemporary basis in Madras University 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 [PART II-SEC . 3 (ii ) ] 5276

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929

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 Tribunal for adjudication . Though reference was sent to this Tribunal , thereference 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 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 Retitioner 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 interviewdo not 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 service is unjust and illegal . Further , the settlements are repugnant to Section 25G & 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 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. tothe temporary workmen which amounts 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 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 .

prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir 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 ) ofI.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 wait listed as candidate No. 454 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 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 . Underthe 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 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 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 date was extended upto 31-3-1997 for filling up vacancies which wereto 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 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 listed at 454 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 hisclaim 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 has no jurisdiction to entertain such plea . It is not correct to 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication bythis 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 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 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 performance of duties as messenger and such engagements were [ भाग II- खण्ड 3 (ii) ]

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saythat 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 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 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.

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 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 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 Petitioner prays that an award maybe passed in his favour.

7. In these circumstances , the points for my consideration are :-

"Whether the demand of the Petitioner in Wait List No. 455 for restoring the wait list of temporary messengers in the Respondent/ 3287 G1/07-20

Bank and consequential appointment thereupon as temporary messenger is justified?"

(ii) "To what relief the Petitioner is entitled? " PointNo. 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 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 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 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 absorbtion 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 . 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 .

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II SEC. 3 (ii)] 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 who are retrenched messengers andareeligible 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 I.D.Act providing for retrenchment is not enacted only forthebenefit ofthe workmen to whom Section 25F applies but for all cases ofretrenchment. Therefore , the application of Section 25 cannot be restricted only to one category ofretrenched workmen. Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contendedthat 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 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 givena raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 ofEx . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of'A, B& C' isquite 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 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 casualstodo messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich 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 casuals along with theeligible 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 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 inthis case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . EvenMW 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 preparedbased 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 MW1 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 to MW1 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. 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 wasconcerned 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 mutual agreement basis . La such circumstances , 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 of Constitution of India. Further , the averment of MW1 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 . It is further contended on behalf of the Petitioner that as per deposition of MW1 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 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 of absorption. Therefore, it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx.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 circularregarding 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. 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 . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M 1 was not produced at the time of conci- liation 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 thisTribunal 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 5279 भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

personal knowledge about the settlements which are marked as Ex. M1 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 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 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 andtherefore, 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 ofthe Petitioner that though some of the Petitioners inthe connected I.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 a period of 12 calendar months . He also relied on the rulings reported in 1985 II 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 whenthe 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 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 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 Petitioners were in employment as sub staff in early 1980s but were denied further engagement onaccount 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 of40 to 50 years and for no fault 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 by 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 accepted the settlements drawn under the provisions of 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 onabsorption 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 I.D. 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 exlstence, 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 4SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme 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. " Learned representative further contended that Ex.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 letter and therefore , the wait list under Ex. M10 which has beendrawn 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 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 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 averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, malafide 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 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 regardto modification of Ex. Ml to M4 made in terms of Ex. M6. Though the Respondent/Bank produced Ex . M7 and M11 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 5280

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[PART II-SEC. 3 (ii)]

proceedings under section 18(3 ) . A settlement of the first category has 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 willbe binding on all workmen of the establishment . Even incase 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 in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied onthe rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIESLTD . 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 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 corruption and other inducements , it couldbe 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 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 same.

11. Learned counsel for the Respondent further contended thatthough 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. Further , in this case , the Court has to see whether the restoration of wait list canbe made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement

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 concealed the material 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 . Further , the allegation that he was sponsored by Employment Exchange 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 isbinding 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 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 LJ 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 claim of 11 workmen 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 conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 union willbe 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 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 maybe 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 rulings 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 conciliation proceedings under section 18 ( 1 ) of the I.D. Act and ( ii ) those arrived at in the course of conciliation

12. But, as against this on behalf of the Petitioner it is contended that mere werding 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 matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of 5281 [भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

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 nature of pleading of thePetitioner to find out the exact nature of dispute instead ofrefusingto 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 rulings reported in 1998 LABIC 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 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 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 argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdictionto 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 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 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 pieadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings ofthe 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 .

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.VIJEESH 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 Govt . service in an existing or a future vacancy . " In that case, pruning of select list on reduction in number of vacancies was made inview 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 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 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 itwas ayearlypanel expiring on 6-2-98, we are of the opinion that the Respondents 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 ofthe 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 held that"candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying onall 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 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 HARYANAAND ORS . 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 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 / 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been 5282

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[PART II-SEC. 3 (ii ) ]

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 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, theirdisengagement is not arbitrary . " He further relied on therulings 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 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 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 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 costs.

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 wasnot 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)hewas 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 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 maybe justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of oneunit 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 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 each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical actibut 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 II SEC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF 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 concerned is appointed in an 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 purported regularisation or confirmation isgiven, 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 ." 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 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS .

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 . Further , 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 ofan 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. 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 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 himtobe 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 Govt. 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 , 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 . Under such circumstances , it cannot be questioned by the Petitioner.

5283

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

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 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 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 cannot 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 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 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 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/Ba alleged by him . Therefore , I find this point against the Petitioner. as Point No. 2:

The next point to be decided in this case is to what relief the Petitioner is entitled?

21. Thus , the reference is answered accordingly .

K. JAYARAMAN, Presiding Officer Witnesses Examined:

For the Petitioner WW1 Sri S. Panneerselvam WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam [PART II-SEC. 3( ii ) ] 5284

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20 , 1929

17-3-97

Documents Marked :-

W18

Xerox copy of the Service particulars- J. Velmurugan.

Ex. No. Date

Description

26-3-97

W19

W1 1-8-88

Xerox copy of the letter advising selection ofpart time Menial-G. Pandi Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

31-3-97

W20

20-4-88

Xerox copy of the appointment orderto Sri G. Pandi .

Xerox copy of the administrative guidelines issued by respondent/Bank forimplementation ofEx . M1 .

Feb. 2005

W21

W3 24-4-91

Xerox copy of the pay slip of T. Sekar forthe month of February , 2005 wait list No. 395 of Madurai Circle .

13-2-95

W22

Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 1-5-91

Xerox copy of the Madurai Module Circularletter about Engaging temporary employees fromthe panel of wait list Xerox copy of the advertisement in the Hindu on daily wages based on Ex . W4 .

9-11-92

W23

W5 20-8-9

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff.

Xerox copy of the advertisement in the Hindu extending Period of qualifying service to daily wagers .

9-7-92

W24

Xerox copy ofthe minutes of the Bipartite meeting.

15-3-97

9-7-92

W25

Xerox copy of the circular letter of Zonal Office , Chennai About filling up of vacancies of messenger posts .

W7 25-3-97

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 .

Xeros copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

7-2-96

W26

Nil

Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as 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.

31-12-85

W27

W9 16-12-95 Xerox copy of the service certificate issued by Madras University Branch .

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre

W10 16-12-95 Xeros copy of the service certificate issued by Madras University Branch .

For the Respondent/Management :-

9-9-96

W11

Ex . No. Date

Description

Xerox copy of the service certificate issued by Ayanavaram branch .

Xerox copy of the settlement .

17-11-87

W12 5-7-97

Хегоx copy of the settlement .

16-7-88

Xerox copy of the service certificate issued by Madras University Branch .

Xerox copy of the settlement.

27-10-88

W13 Nil

9-1-91

Xerox copy ofthe settlement .

Хегоx copy of the settlement .

M5 30-7-96

M6 9-6-95

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding appointment of temporary employees.

Xerox copy of the minutes of conciliation proceedings.

W14 Nil

M7 28-5-91 Хегоx copy of the order in W.P. No.7872/91.

Xerox copy of the Reference book on Staffmatters Vol . III consolidated upto 31-12-95 .

M8 15-5-98

6-3-971

W15

Xerox copy of the order in O. P. No. 2787/97 of High Court ofOrissa.

M9 10-7-99

Xerox copyof the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

Xerox copy of the order ofSupreme Court inSLP No. 3082/99 .

6-3-971

W16

Nil

M10

Xerox copy of the wait list of Chennai Module.

Xerox copy of the call letter from Madurai zonal office For interview of messenger post- K. Subburaj .

6-3-97

W17

25-10-99

M11

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

Xerox copyof the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

5285 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II- खण्ड 3 ( ii) ]

AWARD

नई दिल्ली , 20 जुलाई , 2007

का.आ. 2251.- 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 40/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-07-2007 को प्राप्त हुआ था ।

[सं. एल -12012/579/1998- आई. आर. (बी- I ) ] अजय कुमार , डेस्क अधिकारी

The Central Government, Ministry of Labour vide Order No. L - 12012/579/98 - IR( B - I ) dated 26-3-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 388/99 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 sid dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I. D. No. 40/2004 .

New Delhi , the 20th July , 2007

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri K. Joseph Prestley, wait list No. 439 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 ?" S.O. 2251. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref . No. 40/ 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 Government on 20-07-2007.

3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

[No. L- 12012/579 /1998 - IR ( B - I ) ] AJAY KUMAR , Desk Officer

ANNEXURE

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

Dated : 31st January , 2007

PRESENT

K. Jayaraman, Presiding Officer Industrial Dispute No.40/2004

[Principal Labour Court CGID No. 338/99]

[In the matter of the dispute for adjudication under clause(d) of sub - section ( 1 ) and sub - section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947), between theManagement of State Bank of India and their workmen ]

BETWEEN

: I Party/Petitioner

Sri K. Joseph Prestley

AND

The Assistant General Manager : II Party/Management State Bank of India , Z.O. Coimbator

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised

Representative

For the Management

: M/s . K. Veeramani Advocates

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 temporary basis at Mettur branchfrom 1-2-1985, 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 settlement under section 18 ( 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 1985-86 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 unreasonable , the Respondent/Bank was 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 Mettur 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 initially worked as a class IV employee . From 1-2-1985 , 3287 G1/07-21 5286

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929

[PART II-SEC . 3 (ii ) ] the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Mettur branch , another advertisement by 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 31-3-97 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 hisnon -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 to reconsider the reference and the Petitioner requested the Respondent/Bankto continue to engage him in service as obtained prior 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 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 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 25G & 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 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. tothetemporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged thePetitioner 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 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 .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government foradjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , appointment/absorption does not arise . The engagement ofPetitioner was not authorised. The Petitioner is estopped

from making claim as per Claim Statement. The settlement drawnunder 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 ulterior motive . The Petitioner concealed the material facts that he was waitlisted 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 for 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 17-11-87 , 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 drawnunder Section 18 (3 ) of I.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as perhis eligibility along with similarly placed other temporary employees and the Petitioner was waitlisted as candidate No. 439 in waitlist of Zonal Office, Coimbatore . So far 211 waitlisted temporary candidates , out of 705 waitlisted 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 . Whenthe 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 (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 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 of 36 calendar months were to be considered. As per Clause 7, the length of temporary service wasto 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 filling up vacancies which were to arise upto 31-194 . 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 [ भाग II- खण्ड 3 ( ii ) ]

5287 भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929

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 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 the circulars of 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 . ofthePetitioner. 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. 439 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? "

PointNo. 1:

were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , outof 705 waitlisted candidates , 211 temporary employees were appointed and since the Petitioner was waitlisted at 439 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 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 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 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 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. When the matter was taken up for hearing, it is reported by the representative of the Petitioner that he is not appearing for the Petitioner and the Petitioner also has not appearedbefore this Court for further proceedings and hence, the Petitioner was called absent and set ex parte.

9. In this case, the Petitioner alleged that he was appointed by Respondent/Bank during 1985 and worked as a temporary messenger and during the year 1986-87 he was disengaged from service and again he was engaged as a temporary messenger , and all of a sudden , on 31-3-97 he was terminated 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 I.D. Act . But , no evidence was adduced on behalf of the Petitioner nor produced any document to establish his con- tention. The Petitioner has not appeared before this Tribu- nal to substantiate his claim . As such , I find the allegations of the Petitioner are not established before this Tribunal . Hence , I find the Petitioner is not entitled to any relief as claimedby him . No Costs .

10. Thus , the reference is disposed of accordingly.

K. JAYARAMAN, Presiding Officer 5288

[PART II SEC . 3 ( ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20 , 1929

नई दिल्ली, 20 जुलाई , 2007

Labour Court , Chennai and the said Labour Court has taken thedispute on its file as CGID No. 24/99 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 I. D. No. 201/2004.

का.आ. 2252.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 201/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

2. The Schedule mentioned in that order is as follows:

[सं. एल-12012/357/ 1998- आईआर( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the20th July, 2007

"Whether the demand of the workman Shri S. Gajendiran , wait list No. 685 for restoring the wait listoftemporary 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 Claim Statement are briefly as follows :---

S.O. 2252. -In pursuance of Section 17 of the Industrial Dispates Act, 1947 (14 of 1947 ), the Central Government hereby publishes the Award (Ref. No. 201 / 2004) ofthe 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 on 20-7-2007.

[No.L- 12012/357/ 1998- IR (B- I) ! AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 201/2004

(Principal Labour Court CGID No. 24/99)

(Inthe matter of the dispute 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 theManagement of State Bank of India and their workmen)

BETWEEN

:I Party/Petitioner

SriS.Gajendiran

AND

TheAssistant General Manager, II Party/Management StateBank of India, Z. O. Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative .

Forthe Management : M/ s . K. S. Sundar , Advocates .

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bankof India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Arumbakkam branch from 18-04-1983 . The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before 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 settlement under Section 18 ( 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 1985-86 were classified in the settlement wasunder 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 held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Arumbakkam 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 initially worked as a class IV employee . From 18-04-1983 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also. While working on temporary basis in Thirvanmiyur branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in servicę during the same period . While the Petitioner was working as such, the Manager of the branch informedthe Petitioner orally on 31-3-1997 that his services are not required any more and he need not attend the office from I. The Central Government Ministry of Labour , vide Order No. L- 12012/ 357/98 - IR (B - I) dated 03-02-1999 has referred this dispute earlier to the Tamil Nadu Principal 5289 भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii) ]

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 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 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 25G & 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, wait 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. 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 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 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 .

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 ) ofI.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 wait listed as candidate No.680 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 retrenchment provisions referred to above , cannotturn 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 (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 whohavecompleted 30 days aggregate temporary service 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 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 to arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment. The Respondent hadimplemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem wasdue 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 of 744 wait listed candidates , 357 temporary employees, were appointed and since the Petitioner was wait listed at 680 he was not appointed . The said settlements werebonafide 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 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 nojurisdiction 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 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 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 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 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 5290

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[PART II-SEC. 3 ( ii )]

(ii) "To what relief the Petitioner is entitled?"

Point No. 1:

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 employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wagc / 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 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 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 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 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 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 . 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 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 furtherprayed for reinstatement with back wages and other attendant benefits .

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 Staff Federation were under Section 18( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rulesof 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 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 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 :

(i) "Whether the demand of the Petitioner in Wait List No. 685 for restoring the wait list of temporary messengers . In the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20 , 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 I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 workmen. 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 of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.MJ 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 1 ofEx. M1 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 1 is illegal . Clause 1 ( a) of Ex.M1 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 of the guidelines mentioned in Reference Book on Staff matters , copyofwhich 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/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 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 . EvenMW 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 preparedbased 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 MW1 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 to MW1 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 . 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 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 mutual agreement basis . In such circumstances , 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 of Constitution of India. ' Further , the averment of MW1 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 . It is further contended on behalf of the Petitioner that ás per deposition of MW1 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 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 of absorption . Therefore , it is violative of Article 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx.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 circularregarding 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. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the firstadvertisement 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. 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 held atChennai 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 inleave vacancy . Further, even before or after the settlement onabsorption of temporary employees , the expression that 5292

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[PART II-SEC. 3 ( ii )]

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 of240 days andmore 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 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 inthe connected I.Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II 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 butmust 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 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 . 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 are in age group of 40 to 50 years and for no fault 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 by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner inthis 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 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 theywere 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 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 SastryAward are also violated. Further , the representative ofthe 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 that " to 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 workmen is illegal . " Learned representative further contended that Ex.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 Ex . M10 which hasbeen 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 preach . 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 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 . TheRespondent/Bank has not produced any documentto 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 the averment of MW1 . Therefore , the termination ofthe 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 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 onlywith regard to modification of Ex . Ml to M4 made in terms of Ex . Mo. Though the Respondent/Bank produced Ex. M7 and M11 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 marked as Ex. MI to MS. Above all, though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent/Bank it was implemented only in the year 2001 5293 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खण्ड 3 ( ii ) ]

incase 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 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 AIR 2000 SC 469 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 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 corruption and other inducements , it could be 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 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 , 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 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 inservice 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 not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But , as against this on behalf of the Petitioner it iscontended 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 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 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 length of his engagement 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 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 questioned by anyunion 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 urion entered into a settlement with the management settlingthe claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resigh 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. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORTCORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliationproceedings with a recognised majority union will be binding on all workmen of the establishment , even thosewho belong to the minority union which had objected tothe same. To that extent, it departs 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 maybe ailegations 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 rulings 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 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 second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even

3287 Gl/ 07-22 5294

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[PART II-SEC. 3 ( ii) ] 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 reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664VAN SAG NATHAN ORIENT PAPER MILLS VS. 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 itcannot 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 fit has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a teclinical manner or a pedantic manner, but should consider the order ofreference 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 hasjurisdictionto 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 between the parties and with that object in view, itshould 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 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 ofthe 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.

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 select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number 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 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 itwas a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents 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 ofthe 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 held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying onall 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 theRespondent/Bank in preparing the wait list, it cannot besaid 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 . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those adhoc/ 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 everyad- 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 Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door ;

[भाग II- खण्ड 3 ( ii) ]

5295 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

onlydaily 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 . ) 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 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 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 costs.

15.Learned Senior Advocate further argued that even inrecent decision reported in 20064 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 , 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 Courtto 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 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 arm's length 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 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 ofpublic appointment which is not permissible . " Further , the Supreme Court while layingdown 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 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 , inCDJ2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court (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 additlonal 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 adhoc 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 case, a direction was given to regulartse 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 . 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 II 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 entry itself was illegal and void 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 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 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 , 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 inthe Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR ANDORS . 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 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 5296

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

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 confirmationofan employee upon the expiry ofpurported periodofprobation would not arise. " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR V.s. SURINDER KUMAR, the Supreme Court has held that " it isnot 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 Articles 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 ofservice 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 Govt. 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 , 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 onlyto 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 inthe settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

[PART II-SEC. 3( ii) ] 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 cannot claim for reinstatement or regularisation in services ofthe Respondent/Bank.

18. Further, the representative for the Petitioner contended that in a similar case , 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 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 240 days ofcontinuous 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 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?

21. Thus , the reference is answered accordingly. K. JAYARAMAN, Presiding Officer Witnesses Examined:-

For the Petitioner WW1 Sri S. Gajendran WW2 Sri V. S. Ekambaram..

For the Respondent : MW1Sri C. Mariappan MW2 Sri C. Ramalingam.

Documents Marked:---

Ex. No. Date Description

W1 01-08-88 Xerox copy of the paper publication in daiiy Thanthi based on Ex .M1 , W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx . M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies , 5297 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खण्ड 3 (ii) ]

Ex. No. Date

Description

Date

Ex. No.

Description

17-03-97

W24

01-05-91

Xerox copy of the service particulars- J.Velmurugan.

Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

26-03-97

W25

20-08-91

Xerox copy of the letter advising selection of part time Menial- G.Pandi.

Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97

31-03-97

W26

Xerox copy of the appointment orderto Sri G. Pandi .

Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of massenger posts .

Feb. 2005

W27

Xerox copy of the pay slip of T. Sekar for the month of February 2005 wait list No. 395 ofMadurai Circle .

W28 13-02-92

25-03-97 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 Madurai Module Circular Letter about engaging temporary employees fromthe panel of wait list .

W8 Nil

09-11-92

W29

Xerox copy of the instruction in Reference Book on Staff about casuals not to be engaged at office/branches to domessengerial work .

Xerox copy of the Head officer Circular No. 28-regarding Norms for sanction ofmessenger staff.

W9 21-06-88

09-07-92

W30

Xerox copy of the service certificate issued by Arumbakkam Branch .

Xerox copy of the Minutes of the BipartiteMeeting .

03-08-88

W10

09-07-92

W31

Xerox copy of the service certificate given by Chepauk PWD branch of Respondent/Branch .

09-04-90

W11

Xerox copy of the service certificate issued by Triplicane Branch.

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 .

22-07-92

W12

07-02-06

W32

Xerox copy of the service certificate issued by Thiruvanmiyur Branch.

17-12-92

W13

Xerox copy of the service certificate issued by Thiruvanmiyur. Branch.

Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general Attendants .

08-12-93

W14

31-12-85

W33

Xerox copy of the service certificate issued by Thiruvanmiyur Branch .

25-01-95

W15

Xerox copy of the local Head Office circular about appointment oftemporary employees in subordinate cadre .

Xerox copy of the service certificate issued by Thiruvanmiyur Branch .

Forthe Respondent/Management:-

14-08-95

W16

Ex. No. Date

Description

Xerox copy of the service certificate issuedby ThiruvanmiyurBranch .

Xerox copy of the settlement .

17-11-87

09-04-97

W17

Xerox copy of the service certificate issued by Thiruvanmiyur Branch .

Xerox copy of the settlement .

16-07-88

09-04-97

W18

Хегох copy of the settlement .

27-10-88

Xerox copy of the service certificate issued by Thiruvanmiyur Branch .

Xerox copy of the settlement .

09-01-91

W19 Nil

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Xerox copy ofthe minutes of conciliation proceedings .

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care& service conditions .

M7 28-05-91

Nil

W20

Xerox copy of the order in W.P. No. 7872/91 .

Xerox copy of the Reference Book on staff matters Vol . III consolidated up to 31-12-95.

M8 15-05-98 Xerox copy of the order in O. P. No. 2787/97 of High Court of Orissa. 06-03-97

W21

M9 10-07-99

Xerox copy of the call letter from Madurai ZonalOffice for interview of messenger post-V.Muralikannan .

Xerox copy of the order of Supreme Court inSLP No. 3082/99 .

06-03-97

W22

Nil

M10

Xerox copy of the wait list of Chennai Module.

Xerox copy of the call letter from Madurai ZonalOffice for interview of messenger post-K. Subburaj .

25-10-99

MII

06-03-97

W23

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

Xerox copy of the call letter from Madurai ZonalOffice for interview of messenger post-J. Velmurugan .

5298

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929

[PART II-SEC . 3 ( ii) ] नईदिल्ली, 23 जुलाई , 2007

without complying with the provisions of the I.D. Act is legal and justified? If not , to what relief the workman is entitled and from which date ? " का.आ. 2253.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार एयरपोर्ट ऑथोरिटी ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय II , नई दिल्ली के पंचाट ( संदर्भ संख्या आई.डी.सं. - 127/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को23-7-2007 को प्राप्त हुआ था ।

Theworkman applicant has filed claim statement . In the claim statement it has been stated that the above named workman had been working with the aforesaid management as sweeper since 21-10-1996 on a last drawn salary of Rs . 3800 per month and was engaged in the filed of sweeping, Cleaning and dusting at the IGI Airport .

[सं. एल-11012/9/2000- आई आर ( एम ) ] एन. एस. बोरा , डेस्क अधिकारी

NewDelhi , the 23rd July , 2007

That the workman had been working with sincerity and hard work to the entire satisfaction of the management and did not give a single chance of complaint regarding his work during the said service period.

S.O. 2253 - In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. I. D. No. 127/2000 ) of the Central Government Industrial Tribunal/Labour Court II , new Delhi now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Airport Authority of India, and their workman , which was receivedby the Central Government on 23-7-2007.

[No. L- 11012/9/2000- IR (M )]

N. S. BORA , Desk Officer

ANNEXURE

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

NEW DELHI

That the management had been guilty of unfair labour practice and had been showing illegal and discriminatory attitude towards the workman without any cause or reason . The management had been illegally appointing employees on contract basis even though the jobs are of permanent nature . This is being done with the illegal motive to avoid payment of legal benefits . The workman had been continuously working with the management since 21-10-1996 without break and it was always maintained by the management that the workman will not be terminated and his employment willbe treated as permanent . In any case , the continuous of employment for such a long period confers permanency as has been held by various High Courts and the Hon'ble Supreme Court of India. The above action of the management is illegal , discriminatory.

R. N. Rai .

Presiding Office

INDUSTRIAL DISPUTE No. 127/2000

Inthe matter of:

That as per order dated 6-12-96 of the Hon'ble Supreme Court of India, the contract workers engaged in the field of sweeping , cleaning and , dusting at IGI Airport were taken under the management w.e.f. 1-2-97 . The workman was also issued an Entry Permit bearing No. A- 001946 by the management mentioning the designation.

Shri Rajbir Singh , S/o Shri Rati Ram , House No. 226 , Vill& Post: Dhoo Saras , MetturDam,

New Delhi - 110045 .

VERSUS

TheAirport Dire

Airport Authority of India ,

International Anti Div.

That as per said order of Hon'ble Supreme Court of India, the management was to regularize all workers . However , the management continued to delay the same . The workman fulfilled all requisite formalities as required for regularization but the workman was not regularized. Various meetings of the workers and the management were held and the management promised to regularize the workers including the workman as per order of the Hon'ble Supreme Court of India .

I.G.I. Airport ,

New Delhi - 110037 .

AWARD

TheMinistry of Labour by its letter No. L- 11012/9/ 2000- IR (M ) Cenual Government dt. 10-11-2000 has referred

the following point for adjudication.

The point as hereunder :

That the management further conveyed the same vide notification dated 24th November, 1997 signed by the Executive Director of the management . The workman also submitted " Charitr Avem Poor- vrit Satyapan form". The workman also submitted an affidavit . The workman is a Scheduled Caste and eligible to be regularized as per said order of the Hon'ble Supreme Court of India . The workman had been demanding the regularizing of his services and approached the management number of times but to no effect.

"Whether de action of the Mangement of AAI (IAD), New Delhi , in terminating the services of Shri Rajbir Singh Sweeper , S/o Shri Rati Ram w.e.f. 3-8-98 5299 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खण्ड 3 ( ii) ]

jobs of sweeping , cleaning and dusting pending detailed scrutiny regarding their eligibility for regularization .

That the workman has also been discriminated and was not regularised. The management has not been following the principle of equal pay for equal work .

That on 3-8-98 , the management passed office order No. AAD/PERS/38 ( 1 )/98/68 by which the services of the workman were terminated with immediate effect. The workman was shocked to get this treatment and for this extreme step, which is illegal , and against the settled law.

That the termination of services of the workman without any cause or reason in this manner is illegal , unjustified, discriminatory , against the law ofretrenchment and principle of natural justice . This act of the management amounts to unfair labour practice and victimization.

That the workman has been unemployed since the date of termination of his service despite his best efforts and is entitled to reinstatement with back wages and continuity of services and dues .

The case of all the employees of the then contractors who were engaged in the jobs of sweeping , cleaning and dustingwere taken up for scrutiny with a view to regularize them and 558 workers have already been regularized . The case of Shri Rajbir Singh was also taken up for scrutiny and as aforesaid it was found from records that in the month ofOctober , 96 he performed only three duties and in the month ofNovember , 96 he performed only three duties and in the month of December , 96 he did not perform even a single duty . He was given personal hearing to establish his eligibility for regularization and a committee of Housekeeping Supervisors was also continued to scrutinize the doubtful and difficult cases . This committee of HKS submitted its report dated 27-4-98 from which it is clear that the eligibility for regularization in respect of Shri Rajbir Singh could not be established and, therefore, the services of Sh . Rajbir Singh could not be established and , therefore, the services of Sh . Rajbir Singh were discontinued on 3-8-98 vide office order No. AAD/PERS/38 (a)/98 : dated 3-8-98 .

That the workman also sent legal notice of demand dated 13-11-98 by Registered AD through his counsel but the management failed to comply with the same despite receipt of the same . The management did not give any reply either. The workman also gave reminder notice dated 3-6-99 but to no effect , hence this claim.

Itisrespectfully submitted that the allegations made by the workman against the management have no merit whatsoever as is clear from the facts stated in para 2 above. The management never gave assurance to the workman much less to the effect that his services will not be discontinuing and that he will be treated as permanent . The action of the management is perfectly just, fair and bona- fide besides being legal and suffers from no infirmity as alleged or at all .

The Management has filed written statement . In the written statement it has been stated that the contents of para 1 of the statement of claim under reply as stated are not correct hence denied . It is respectfully submitted that priorto December 1996 the work of cleaning , sweeping and dusting at the I.G.I. Airport was being done through the Contractors who used to employ their own labour force for the said jobs . Shri Rajbir Singh was engaged by the then Contractor M/s . Friends Cobine Services . From a perusal of the records it has been noted that in October , 1996 he performed only (2) two duties , in November , 1996 he performed only ( 3 ) three duties and in December , 1996 he did not perform even a single duty. The rate of his last drawn wages is a matter of record.

The true and correct facts are that consequent upon the judgement dated 6-12-96 of the Hon'ble Supreme Court of India the Contract Labour system in the jobs of sweeping, cleaning and dusting was abolished by the answering management and the workers engaged by the then contractors in the aforesaid jobs were taken under the care ofthe AAI ( IAD ) , IGI , Aiport w.e.f. 1st February , 1997: In terms of the judgment of the Hon'ble Supreme Court of India dated 6-12-96 the management was required to consider for regularization those workers of the then contractors who were engaged in the jobs of sweeping , cleaning anddusting and were working with the contractors as on 6-12-96 .

Thatthe management of AAI with a view to comply withthe judgment dated 6-12-96 of the Hon'ble Supreme Court of India in its letter and spirit took over the services of all the workers of the then contractors working in the

It is respectfully submitted that in terms of the judgment dated 6-12-96 of the Hob'ble Supreme Court of India the management of AAI was required to regularize all such workers who were working as on 6-12-96 with the then contractors in the jobs of sweeping , cleaning and dusting. The judgement of the Hon'ble Supreme Court of India may please be looked into for its true and correct meaning and interpretation . As has already been stated above in para 2 that the answering management with a viewto comply with the directions of the Hon'ble Supreme Court of India as contained in the judgment dated 6-12-96 started the process of regularisation of such workers and after scrutinizing the cases has already regularrised workers . There has not been any willful delay from the management in the scrutiny of the cases for regularization . Theworkman herein was given due opportunity to establish his claim for regularisation as from the records it was noted thattheworkman was not fulfilling the necessary conditions for regularisation in that in the month of October , 96 he performed only two duties , in November , 96 he performed only three duties and in December , 96 he has not performed even a single duty. Here it may be pointed out once again that to establish and identify the claim of the workman for regularization a committee of House Keeping Supervisors was constituted and even before this committee, which examined the difficult and doubtful cases including that of 5300

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929

theworkman, the workman's claim for regularisation could notbe established. The answering management made every effort to regularize the workers as per the judgment dated 6-12-96 of the Hon'ble Supreme Court of India and has not in any manner violated and/or flouted the directions as contained in the said judgment. The workman could not be regularised as he was not fulfilling the required conditions .

It iscorrect that the management issued a notice/ orderdated 24th November, 1997 and the same may please be looked into for its true and correct meaning and interpretation . It is respectfully submitted that mere submission of " Charitr Avem Poor- Vrit Satyapan Form " andAffidavitwill not entitle the workman for regularization. The workman is required to fulfil the conditions as mentioned in the judgment dated 6-12-96, which he is not fulfilling and is , therefore , neither eligible nor entitled for regularization . The workman has thus not been discriminated in the matter of regularization or in any other manner .

It isrespectfully submitted that this discontinuance ofservice of the workman is perfectly legal , bona - fide and in confirmity with the judgment dated 6-12-96 and suffers from no infirmity as alleged or at all .

It isrespectfully submitted that a notice dated 3-6-99 was sent by the worknian through his Advocate Sh . Jagmal Singh Yadav and the same was replied to by the management vide its letter No. PERS/IR/ 1103/ 1/96/ 1268 dated 21st September , 1999. Apprising him of the true and correct facts.

It is respectfully submitted that the management placed all the facts before the Conciliation Officer, but as usual he submitted his failure report .

The workman applicant has filed rejoinder . In his rejoinder he has reiterated the averments of his claim statement and has denied most of the paras of the written statement . The management has also denied most of the paras of the claim statement .

The case was posted for affidavit of the management on25-04-2007,09-05-2007 and 19-06-2007 . The management did not turn up . The opportunity of filing affidavit was closed on 09-05-2007. The case proceeded ex - parte. The argument of the workman was heard .

Itwas submitted from the side of the workman that his services were terminated w.e.f. 03-08-1998 without complying with the provisions of the I. D. Act , 1947. The workman was engaged through the contractor for the work of sweeping , cleaning and dusting at IGI Airport w.e.f. 01-02-1997 . He was issued entry permit bearing No.A- 001946 by the management.

Inview ofthe judgment of the Hon'ble Supreme Court dated 06-12-1996 the workman should have been regularized.

[PART II-SEC. 3 (ii)] Theworkman has examined himself and he has stated that heworked for 27 days in the month of December, 1996. The Hon'ble Apex Court directed the management to regularize the services of all the workmen performing the duties of sweeping and cleaning . The workman was engaged through contractor on 06-12-1996 and in view of the judgment of the Hon'ble Apex Court he should have been regularized but the management terminated his services arbitrarily and illegally .

The workman has filed Identity Cards and some documents in support of his case . In his cross examination he has specifically stated that he worked for 27 days in the month ofDecember , 1996.

The case of the management is that the workman did not perform duty even for a single day during December, 1996. Some photocopy documents have been filed by the management . These documents are not admissible in evidence.No original document has been filed.

The substantial question to be determined whether the workman was engaged during December , 1996 or not. The workman has filed documentary evidence and he has examined himself in evidence to prove that he discharged duties inDecember , 1996. The case of the management is that this workman did not work even for a single day during December . 1996. The original documents regarding the working days ofDecember, 1996 are with the management. Those documents have not been filed . Since the management has taken the plea that this workman did not discharge duties for a single day during December , 1996, the management was bound to discharge this burden by filing attendance register etc. on the record to establish the plea, the management has taken . No such documents have been filed. The management has not filed any affidavit in support of its plea of the written statement .

In the circumstances the averments of the claim statement are found proved and the workman is entitled to regularization within 2 months from the date of the award .

The reference is replied thus:

The action of the management of AAI ( IAD) , New Delhi in terminating the services of Shri Rajbir Singh, Sweeper, S/o . Shri Rati Ram w.e.f. 03-08-1998 without complying with the provisions of the ID Act is neither legal nor justified. The management should regularize the workmanw.e.f. 03-08-1998 within two months from the date ofthe publication of the award.

The award is given accordingly .

Date: 29-06-2007.

R. N. RAI , Presiding Officer नई दिल्ली, 23 जुलाई , 2007

का.आ. 2254.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार आई.बी.पी.

5301 भारत का राजपत्र : अगस्त 11, 2007/ श्रावण 20 , 1929

[भाग II- खण्ड 3( ii) ]

कॉर्पोरेशन लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय लखनऊ के पंचाट ( संदर्भ संख्या आई.डी.सं. - 1/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था ।

[सं. एल-30012/21/2003- आई आर ( एम ) ]

letter dated 13-1-03 and he was sent achive for an amount ofRs . 18770. It is also admitted fact that one Sri Aftab Ahmad Siddiqui as also terminated by the similar order and Sri Siddiqui challenged the order of termination before the Hon'beHigh Court by means Writ Petition No. 1175 (SS ) of 2003AftabAhmed Siddiqui Vs. General Manager , IBPCo. Ltd. , and others . The said writ petition was dismissed by the Hon'be High Court vide order dated 23-10-2003 .

एन. एस. बोरा , डेस्क अधिकारी

NewDelhi , the 23rd July, 2007

S.O. 2254. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947 ), the Central Government hereby publishes the award (Ref. No. 1/2004) of the Central Government Industrial Tribunal/Labour Court, Luchnow as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of I.B.P. Corp. Ltd. and their workman, which was received by the Central Government on 23-7-2007.

[No. L-30012/21 /2003- IR (M)]

N. S. BORA , Desk Officer

ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT LUCKNOW

INDUSTRIAL DISPUTE No. 1/2004

REF. NO. L- 30012/21/2003- IR (MISC) Dt. 3-12-03

BETWEEN

Shri Bachchan Lal Paswan , S/o Chandraman Paswan , C/o Sh. Thakur Prasad Chaudhary, Hira Lal Nagar Colony , Sarojini Nagar Lucknow

AND

The worker has alleged that he was engeaged with IBPCo.as Depot Pump Operator and was performing his duties under the control of Sr. Depot Manager , IBP Co. Ltd. Lucknow. The post on which the workman concerned wasworkingwas of the permanent and perennial in nature andworkman concerned has worked continuously without any break for more than six years before his termination . Under compelling circumstances the workman raised an industrial dispute regarding regularization of his services inthe establishment of the employers under the provision ofthe Industrial Dispute Act. 1947. After conducting the necessary proceedings the Assistant Labour Commissioner(C) recommended the Central Govt . to refer thealleged dispute for proper adjudication and intimated the parties concerned to the aforesaid effect by means of his letter dated 31-12-2003 . Due to the above litigation as well as legitimate claim , the employers became annoyed and with the intent to victimize the workman concerned, the employers terminated the services of the workman by means of the letter dated 13-1-2003. The money for which the employer sent the cheque for Rs . 18770 to the workman, workman returned vide his registered letter dated 6-5-2003 . The employers have not reduced any manpower in the establishment but they have awarded the work contract to the private agency which was being carried out performed bytheworkman concerned and therefore it can not be said that the termination of services of the workman concerned was proper and justified in any manner whatsoever and accordingly the workman concerned is entitled to get the reinstatement alongwith consequential benefits .

The General Manager (NR) IBP Corpn. Ltd. , Bulk Petroleum , Depot, E-8 Sector - I Near Amausi Railway Station , Amausi , Lucknow .

AWARD

The Government of India, Ministry of Labour vide their order No. L- 30012/21 /2003 - IR(Misc .) dated 3-12-2003 referred the following dispute for adjudication to CGIT- cum -Labour Court Lucknow.

"Whether the action of the Mangement of I.B.P. Co. Ltd.Amausi Lucknow in terminating the services of Shri Bachchan Lal Paswan S/o Shri Chandraman Paswan , Causal Depot, Pump Operator w.e.f. 15-1-2003 is proper and justified ? Ifnot, to what relief the workman concerned is entitled ?"

Sr. Depot Manager , IBPCo. has filed the written statement wherein it has beett pleaded that Bachchan Lal Paswan was engaged as casual labour on 17-3-97 on some VIP reference for cleaning work ofplant/machinery at the depot . Earlier the Indian Oil Corporation had no terminal at Luchnow and it used to lift the supply of oil from IBP Company Ltd. depot at Amausi . The Indian Oil Corproation has constructed its own supply terminal and it does not lift the supply of oil from IBPCo. Ltd. As such , the work at Amasui depot of IBPCo. Ltd. has been drastically reduced, resulting into cut of expenditure of the depot. As such, the IBPCompany Ltd. has introduced a Voluntary Retirement Scheme for reduction of manpower for its permanent employees . Accordingly vide order dated 13-1-2003 , the services of Sri Bachchan Lal Paswan were discharged simplicitor and he was retrenched and was paid an amount of Rs . 18770 towards one month notice wages , compensation @ 15 days wages for every completed year ofservice and wages for the period 17-3-97 to 15-1-03.

The admitted facts are that Sri Bachchan Lal Paswan was engaged on 17-3-97 on consolidated monthly wages of Rs . 4250 and his services were terminated by means of

3287 GI/07-23 5302

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929

[PART II-SBC. 3( ii)]

andhas filed 4 annexures which are as follows ;

1. Circular about house keepingdt . 28-4-99.

2 Letter dt. 26-12-02 about regularisation of the worker reference No. Lko -8/2/ 171 purported to be notice.

3. Retrenchment orderdt. 12-1-03 with the details of compensation i.e. 4250/ - towards one month's salary , notice compensation Rs . 12,395/- calculated on the basis of his services from 17-3-97 to 15-1-03 and Rs. 2125/- wages w.e.f. 1-1-03 to 15-1-03 to the worker by the General Manager, IBPCo. North Region .

4. Letter of worker addressed of Manager, IBPCo. Ltd.Amausi dtd . 6-5-03 returning the cheque for Rs.18,770.

Theopposite party has filed the affidavit of Sri A.P. Rao, Sr. Terminal Manager , IBP Co. Ltd. alongwith following annexures ;

1. Statement of Thrupt for the month of Dec. 2002.

2. Statement of Thrupt for Jan. 2003 .

3. Statement of Thrupt for Feb. 2003 .

4. Letter of worker dt. 24-7-02 address to ALC (C) Lucknow regarding regularisation .

5. Letter of authorised representative Sri B.P. Singh dated 30-9-02toALC( C) Lucknow .

6. Authority letter filed in the office of ALC (C) Lucknow dt. 30-9-02 in favour of Sri B.P. Singh .

7. Reply of the opposite party Sri M.K. Awasthi , Sr. Manager filed before the ALC (C) Lucknow.

8. Photo copy of the notice of ALC ( C) Lucknow dtd. 26-12-02.

9. Retrencnment letterdtd. 13-1-03 .

10. Second notice No. LKO -8/2/2003 dtd. 24-1-03 .

11. Application of the worker dtd . 20-1-03 for reinstatement .

12. Objection of the opposite party.

The copy of the termination order was received by Sri Bachchan Lal Paswan on 15-1-2003. Thus, services of Sri Bachchan Lal Paswan was retrenched and there has been substantial compliance of Section 25- F of the I.D. Act, 1947. After termination of services of Sri Bachchan Lal Paswanpreferred an application under Section 2A of the I.D.Act, 1947 before the Asstt . Labour Commissioner (C) Lucknow seeking a direction to the employer to take him back in service and if the employer was not ready to take himback in services, then recommend the Government to refer the dispute for proper adjudication before the competent court of law. The said application was sent by theAsstt. Labour Commissioner (C) Lucknow to the IBP Company Ltd vide covering letter dated 24-1-03 for attending the conciliation proceedings IBP Co. Ltd, filed objection to the application . While the proceedings were pending before the Asstt . Labour Commissioner (C) Lucknow Sri Bachchan Lal Paswan filed a Writ PetitionNo. 1770 (S/S) of 2003 Bachchan Lal Paswan Vs General Manager, IBP Company Ltd. and Others before the LucknowBench of Hon'ble High Court by concealing the suppressing the material fact about the proceedings pending before the Asstt . Labour Commissioner (C) Lucknow and without furnishing a copy ofthe writ petition uponthe counsel ofthe IBP Company Ltd. despite receiving the caveat. Vide interim order dtd. 28-3-03 , the Hon'ble High Court admitted the writ petition and stayed the operation of the order of termination dtd. 13-1-2003.On 27- 3-03 Sri Bachchan Lal Paswan replied to the objections of the IBP Company Ltd. before the Asstt . Labour Commissioner ( C) Lucknow. On receiving the copy of interim order dtd. 28-3-03 efforts were made by the IBP Company Ltd. to get the stay order vacated by filing the application for vacation of interim order supported with a counter affidavit , The Hon'ble High Court vide judgement dtd . 31-7-03 dismissed the writ petition No. 1770 (S/S) of 2003 and discharged the interim order dated 28-3-03 , since Sri Bachchan Lal Paswan had concealed material facts in the writ petition upon had also not served copy of the writ petition upon IBP Company Ltd. despite the service of caveat. Amausi Depot of IBP Company Ltd. had no workman employed after the termination of services of Sri Bachchan Lal Paswan and there is no person junior to Sri Bachchan Lal Paswan working at Amausi Depot of IBP Company Ltd. Further, there isno post of permanent workiman at Amausi Depot of IBPCompanyLed .

13. Photo copy of the orders of the Hon'bie High Court in C.M. Application 6778/03 in writ petition 1170(S/S)2003 Bachchan Lal Paswan vs. General Manager , IBP Co. Ltd. and others .

The Sr. Depot Manager has therefore submitted that there is no illegality in the order of termination dated 13-1-2003 and therefore the claim of the workman is liable tobe dismissed and Sri Bachchan Lal Paswan is not entitled for anyrelief.

14. Photo copy of the judgementdt. 31-7-03 passed in writ petition 1770/03 Bachchan Lal Paswan vs. General Manager IBPCo. Ltd. and other passed by the Hon'ble High Court , Lucknow bench . :

Worker did not file any document in support of his statement of claim .

15. List of permanent workeres working at the Co. Depot. Amausi , Lucknow .

Worker has filed his evidence in the form of affidavit

Parties have cross- examined each other witness on 5303 [ भाग II- खण्ड 3(ii) ]

भारत वन राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

their affidavit.

Heard learned representative of the parties and perused the evidence on record .

It is admitted fact that worker espoused two disputes before the Asstt. Labour Commissioner ( C) Lucknow, firat is LKO - 8 /2/ 17/ 2002 regarding regularisation which ended in failure and Asstt . Labour Commissioner (C) Lucknow send the failure report to the appropriate Government vide hisFOC report No. LKO-8 /2/17/02 dtd. 26-12-02, the second caseNo. LKO-8 (2-2) /03 which pertains to the present case before this court regarding termination .

The appropriate Government i.e. Government of India, Ministry of Labour, New Delhi sent reference no . L- 30011/ 1 /2003 - IR (Misc) dt. 1-5-03 which has been disposed ofby the awarddt. 4-5-07.

It is not a fact that during the first conciliation proceeding the workman was terminated as the FOC in respect offirst case concluded on 26-12-02 and the workman has been terminated on 15-1-03.

Rs. 4510 per month . It was also submitted before the Hon'ble High Court by the opposite party that been paid and the cheque of compensation has been encashed by the petitioner . Denying the worker's encashing allegations about retaining junior workers . The opposite party submitted that no person junior to the worker is engaged atAmausi Depot of IBP Co. Ltd. There is no violation of Section 25G of the Act . The condition precedent to the retrenchment of the workman under sub section ( a) and (b) ofSection 25F have been complied with while the non compliance of sub- section ( c) of section 25F does not amount to any illegality . The provision under Section 25 -N oftheAct is not applicable because at Amausi Depot , only 10workmen are employed and therefore , the provisions of Chapter V - B of the Act are not applicable. Hon'ble High Court concluded after hearing the argument of the parties thatworkmanAftab Ahmad Sidiqui was a casual employee getting a consolidated salary and he had no legal right to continue on the post. Hon'ble High Court also concluded that the order of termination does not suffer any legal infirmity. The opposite party has not adopted retrenchment schemebut in order to meet the requirement of law he has been paid the salary in lieu of one month notice and retrenchment compensation as required under Section 25F ofthe I.D. Act . and as such the Hon'ble High Court found that there was due compliance of Section 25F ( a) & (b) of the I, D . Act . Referring to sub-section (C) of section 25F concluded that the same is not mandatory in view of the judgment of the Hon'ble High Court in Jagan Singh vs. Canara Bank and Others (1994) I UPLBEC 399 and the judgement ofthe Hon'ble Supreme Court in Bombay Union ofJournalists and Others vs. State of Bombay and another AIR 1964 SC 1627. Hon'ble High Court (Lucknow Bench) further held that Section 25 - G is not applicable as no juniors tothe workers Aftab Ahmad Siddiqui has been retained.

Hon'ble High Court in aforesaid fact and legal position came to the conclusion that writ is not maintainable for the relief claimed but at the same time Hon'ble High Court observed that since the Aftab Ahmad Siddiqui has been working since1992, therefore , if any exigeny arises for keeping an additional man power , the petitioner shall have the preferential right and the opposite party shall not be permitted to replace the petitioner by another casual labour after sometime arbitrarily and Hon'ble High Court dismissed the writ petition .

It isnot disputed that one of the co -worker Sri Aftab Ahmad Siddiqui obtain stay order against the termination , on 21-2-03 and the workman concerned also filed writ petition challanging the termination order issue against him and Hon'ble High Court, Lucknow bench also pleased to pass interim order in favour of the worker but subsequently vide judgment and order dt . 31-7-03 the said writ was dismissed . Although worker Bachehan Lal Paswan did not file writ against the termination order before Hon'ble High Court, but worker Aftab Ahmad Siddiqui filed the writ petition against the termination order which is writ petition No. 1175 (S/S) of 2003 which was dismissed on 23-10-03 . In the writ petition filed by Sri Siddiqui he alleged that he was appointed by the opposite party on 15-9-92 in the establishment and was given the posting at Amausi Depot, Lucknow and since then he was working continuously upto 15-1-03. He applied for revision ofhis pay scale but authorities concerned instead of revising the pay scale terminated the services of the worker by order dtd.13-1-03 . According to Aftab Ahmad Siddiqui the order oftermination was arbitrary illegal and erroreneous. Itwas alos alleged by the workman subsequent to his appointment on15-9-92, other worker were appointed and they have been retained where as services of the worker terminated without any retrenchment scheme .It was also alleged that retrenchment can only be made where there is retrenchment scheme approved by the Government and thus the termination order is violation of provision of Section 25G ofthe I.D. Act . 1947. He has also alleged that his services were terminated without any notice as required under Section 25F( C) and 25 N of the I.D. Act. No prior permission was taken from the Government.

Coming to the facts of the present case it is admitted fact that worker was engaged without giving him any appointment letter . He has also admitted that he was not included in the list of permanent workers. He has stated that he was engaged for carrying out misc. work and besides Pump Operation he was sent for work where the urgency required, Worker has also admitted that he received a cheque of Rs. 18770 but he returned the sameto the Company. He has also admitted that none of juniors are engaged in the Depot . Worker has also admitted that he sometime carried out the work of casual labour and some howmaintains himself. Sri A.P. Rao , Sr. Manager of IBP It was contended by the opposite party before the Hon'ble High Court in the aforesaid writ petition that Sri Aftab Ahmed Siddiqui was engaged as causual labour in IBP Co. Ltd. on 15-9-92 on consolidated salary of 5304

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

[PART II-SEC . 3( ii) ] =

(संदर्भ संख्या आई.डी.सं. - 12/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । in the cross examination he has stated that where ever therewas need of unskilled casual labour , worker used to be engaged there . He has also stated in cross examination sometime he was asked to assist the regular worker of the Depot.

[सं. एल-29011/ 31/2003- आई आर ( एम) ] एन. एस. बोरा , डेस्क अधिकारी

New Delhi , the 23rd July,2007 Sri AP Rao , Sr. Manager has further stated that work isreduced in the IBP Co. as the Indian Oil Corporation open its ownterminal . He has also stated that worker has been send a cheque of entire dues including compensation.

From over all evaluation of the evidence on record I come to the conclusion that case of worker Bachchan Lal Paswanand that of Aftab Ahmad Siddiqui are on the same footing with the following differences;

8.O. 2255.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. I. D. No. 12/2005) of the Central Government Industrial Tribunal/ Labour Court . Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Orissa Mining Corporation and their workman which was received by the Central Government on 23-7-2007 .

[ No. 1-29011/31 /2003- IR (M)) 1. Sri Aftab Ahmad Siddiqui was engaged on 15-9-92 whereas Bachchan Lal Paswan engaged on 17-3-97.

N. S. BORA , Desk Officer 2. Sri Aftab Ahmad Siddiqui encashed the cheque whereas Sri Bachchan Lal Paswan returned the cheque .

ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT, BHUBANESWAR

PRESENT

Inboththe cases worker were not regular employee instead theywere casual worker engaged on monthly salary inthe same Depot of IBP Co. Ltd. Amausi , Lucknow .

Shri N.K.R. Mohapatra , Presiding Officer

INDUSTRIAL DISPUTE CASE No. 12/2005

Date of Passing Award 4th July 2007 It isadmitted fact that worker received the cheque andhedid not encash it instead opted to return it . Therefore I come to the conclusion that there has been sufficient compliance of the retrenchment.

BETWEEN

TheManagement of the Managing Director , M/s. Orissa Mining Corporation , OMC House , Bhubaneswar- 751001 , Orissa .

... Ist Party-Management ,

AND

Their Workman , Shri Premananda Nayak, Represented the General Secretary , OrissaMiningWorkers Federation , C/o . OMC Ltd. , OMC House , Bhubaneswar - 751001 Thejudgment of Hon'ble High Court in respect of similarly situated workman is binding to this court also and I come to the conclusion that termination of the worker w.e.f. 15-1-03is proper and justified , However, the judgment passed by the Hon'ble High Court , Lucknow Bench, Lucknow on 23-10-2003 in writ petition no . 1175 (S/ S ) of 2003Aftab Ahmad Siddiqui vs General Manager IBP Co. Ltd. and other shall alslo be relied to the worker concerned about his engagement in exigency if any in preference to his juniors . The opposite party is directed in the circumstances of the case to issue a fresh cheque to the worker for amount Rs . 18770 within a month of passing of the award. Award passed accordingly.

... IInd Party- Union

APPEARANCES

SHRIKANT SHUKLA , Presiding Officer

Shri S.R. Pattnaik ,

...For the Ist Party- Management Lucknow Dated: 6-7-2007

Manager, Legal

नई दिल्ली, 23 जुलाई , 2007

Shri A.K, Samal ,

... For the IInd Party-Union

General Secretary

AWARD

The Government of India in the Ministry of Labour , in exercise of Powers conferred byClause (d) of sub- section का.आ. 2255.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार उड़ीसा माइनिंग कॉर्पोरेशन के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योग्रिक अधिकरण/ श्रम न्यायालय , भुवनेश्वर के पंचाट 5305 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II- खण्ड 3( ii ) ]

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, ERNAKULAM

(1) and sub- section 2(A) ' of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) have referred the following dispute for adjudication vide their Order No. L- 29011 /31 / 2003 (IR (M), dated 20-4-2005:-

PRESENT

Shri P.L.Norbert, B.A. , L.L.B. , Presiding Officer (Tuesday the 3rd day of July, 2007/ 12th Ashada, 1929) INDUSTRIAL DISPUTE No. 51/2006

(Reference transferred from Industrial Tribunal , Alapuzha)

"Whether the action of the Mangement of M/s.Orissa Mining Corporation , in relating to their Barpada Kasia Mines in not allowing Shri Premananda Nayak , Ex -Weigh Bridge Assistant to report for duty and for non - payment of salary and other benefits with effect from 25-7-1997 is legal and justified? Ifnot, to what relief the workman is entitled to?"

Workman/Union : Margaret Fernandez Kankalil , Nangiarkulangara P.O. Alapuzha.

Adv . Shri Thomas Abharam

Management : 1. The Airport Director Trivandrum Airport Authority of India (NAD) Trivandrum Internatioal Airport Trivandrum - 695008

2. After receipt of the above reference both party appeared and filed their claim statement and written statement . While the case was at the stage of settling the Issue, the Union filed a petition on 31-10-2006 to drop the proceeding but later did not turn up for five consecutive dates . Today i.e. on 4-7-2007 he again appeared and filed a petition to close the case stating the dispute has already been resolved in the meantime on payment of compensatory benefits . During hearing of the said petition the representative of the Management Shri M.R. Mohanty , Advocate, fairly conceded to the stand taken by the Union. According to them the workman having been compensated has now been allowed to join in his post. In view of the above the reference has lost its force being nonest .

2. The Administrator M/s. Ex- servicemen's Welfare Co- operative Society Ltd. , No. 780 O/o the Registrar of Co - operative Societies (General ) , Vanchiyoor, Thiruvananthapuram.

Adv . Shri V. Santharam 3. Accordingly the reference is answered. N.K.R. MOHAPATRA , Presiding Officer नईदिल्ली, 23 जुलाई , 2007

AWARD

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

का.आ. 2256. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14) की धारा 17 के अनुसरण में , केन्द्रीय सरकार त्रिवेन्द्रम एयरपोर्ट ऑथोरिटी ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय इर्नाकुलम के पंचाट ( संदर्भ संख्या आई.डी.सं. - 51 /2006 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था ।

"Whether the action of the Director , Airports Authority of India, Trivandrum in non- absorbing/ terminating the services of Smt . Margaret Fernandez , Contract Labour Cleaner is just and fair? If not, what relief the concered workman is entitled to ? " [सं. एल -11012/6/2005- ओई आर ( एम ) ] एन. एस. बोरा , डेस्क अधिकारी

New Delhi , the 23rd July, 2007

2. When the matter came up for hearing the worker remained absent continuously . The counsel also remained absent today . There was no representation also for the worker. In the circumstances there is no meaning in keeping the case pending indefinitely. Therefore I find that there is no subsisting dispute for adjudication . Hence the reference is answered that the action of the Director , Airports Authority of India , Trivandrum in not absorbing/terminating the services of Smt . Margaret Fernandez , Contract Labout Cleaner is just and fair and the worker is not entitled for any relief. No cost .

S.O. 2256. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (I. D. No. 51/ 2006) of the Central Government Industrial Tribunal/Labour Court , Ernakulam now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management ofTrivandrum Airport Authority of India, and their workman which was received by the Central Government on 23-7-2007.

Dictated to the Personal Assistant , transcribed and typed by her, corrected and passed by me on this the 3rd day ofJuly, 2007 .

[No. L- 11012/6/2005 - IR (M)]

P. L. NORBERT , Presiding Officer

Appendix:Nil

N.S. BORA , Desk Officer 5306

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929

[PART II-SEC. 3( ii) ]

AWARD

नई दिल्ली, 23 जुलाई, 2007

का.आ.

TheGovernment of India in the Ministry of Labour , in exercise ofpowers conferred by Clause ( d) of sub- section (1) and sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) have referred the following dispute for adjudication vide their Order No. L- 26012/2/ 2004- IR(M) , dated 17-08-2004:-

2257. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार मै. नेशनल इन्टरप्राइजेज के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय भुवनेश्वर के पंचाट ( संदर्भ संख्या आई.डी.सं. 55/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-07-2007 को प्राप्त हुआ था ।

[सं. एल -26011 /2/2004- आई आर ( एम ) ] एन. एस. बोरा , डेस्क अधिकारी

NewDelhi , the 23rd July, 2007

"Whether the action of the Management of M/ s . National Enterprises , Contractor , Jajang Iron Mines ofM/s . Rungta Mines Ltd. At Po . Joda Dist . Keonjhar by not allowing duty/ terminating the services of Shri Niranjan Das , Ex.-P.R. Mines At/Po . Jajang , Dist . Keonjhar without any charges , domestic enquiry and without observing principle of natural justice isjustified ? If not what relief the workman is entitled to ?

S.O. 2257. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref . No. ID No. 55/2004) of the Central Government Industrial Tribunal / Labour Court , Bhubaneswar now as shown in the Annexure inthe Industrial Dispute between the employers in relation tothe management of M/s . National Enterprises and their workman, which was received by the Central Government on 23-07-2007 .

[No. L- 26011 /2/2004- IR (M) ]

N. S. BORA , Desk Officer

2. After receipt of the above reference both the parties were separately intimated in response to which the workman alone filed his Claim Statement in as back as on 21-7-2005. The Management on the other hand took time after time to file his written statement and ultimately today both the parties filed a joint petition of compromise settling the claim of the disputant at Rs . 13,000/- (Rupees Thirteen Thousand Only) on full satisfaction of his entire demand. The workman who is present in court agreed to have received the said amount in full satisfaction of his claim on condition not to proceed further with the case and make any separate claim in any other forum.

ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, BHUBANESWAR

In view of the above the reference is answered in terms of the above compromise dated this the 10th July, 2007.

PRESENT

N. K. R. MOHAPATRA , Presiding Officer Shri N.K.R. Mohapatra , Presiding Officer ,

नई दिल्ली, 23 जुलाई , 2007

INDUSTRIAL DISPUTE CASE NO . 55/2004

Date of Passing Award- 10th July, 2007

BETWEEN

TheManagement of the Proprietor, M/s . National Enterprises , Contractor, At./Po . Barbil , Dist . Keonjhar .

... Ist Party----Management .

का.आ. 2258. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार उड़ीसा माईनिंग कॉर्पोरेशन के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय भुवनेश्वर के पंचाट ( संदर्भ संख्या आई.डी.सं. 18/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-07-2007 को प्राप्त हुआ था।

AND

[सं. एल-29011/ 7/2004- आई आर ( एम) ] एन. एस. बोरा , डेस्क अधिकारी TheirWorkman, Shri Niranjan Das ,

Ex-Miner , At . Jajang Rungta Camp .

New Delhi , the 23rd July, 2007 P.O. , Jajang , Via -Joda , Orissa, Keonjhar.

2nd Party -Workman

APPEARANCES

Authorized

For the 1st Party-Management

Shri NiranjanDas .. For 2nd Party-Union .

S.O. 2258. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. ID No. 18/2004) of the Central Government Industrial Tribunal/ Labour Court , Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Orissa Mining Cooporation and their 5307

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खण्ड 3 ( ii) ]

workman, which was received by the Central Government on 23-07-2007.

[No. L- 29011 /7/2004- IR (M) ]

N. S. BORA, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM- LABOUR COURT, BHUBANESWAR

PRESENT

Shri N.K.R. Mohapatra, Presiding Officer

INDUSTRIAL DISPUTE CASE NO. 18/2004 Date of Passing Award- 10th July , 2007

BETWEEN

1. TheManagement of Managing Director , M/s . Orissa Mining Corporation , OMC House , Bhubaneswar- 751 001 , Orissa .

2. The Manager (Mines) ,

South Kallapani Chromite Mines of M/ s . OMC Ltd. , P.O. Kalarangitta, Jajpur (Orissa) .

1stParty-Managements .

AND

Their Workman , represented through TheGeneral Secretary, Orissa Mining Workers Federation , C/o . OMC Ltd. OMC house , Bhubaneswar.

.2nd Party -Workman

APPEARANCES

For the 1st Party- Management S.R. Pattnaik , Manager, Legal .

For 2nd Party -Union .

Shri A.K. Samal , General Secretary.

AWARD

TheGovernment of India in the Ministry of Labour , in exercise of powers conferred by Clause (d ) of sub - section (1) and sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) have referred the following dispute for adjudication vide their Order No. L- 29011 /7/ 2004- IR (M), dated 17-03-2004 :-

"Whether the action of the Management of M/ s . Orissa Mining Corporation Ltd. , in relation to their South Kallapani Chromite Mines in not providing equal pay of equal work to the workmen ( the details of whom are given in Annexure - A subject to transfer to any other Mine & Prospecting Camp by the Management ) incompatibility with their regular counterpart engaged in the Establishment and not regularizing them in the permanent posts of M/ s . OMC considering their length of service being engaged in permanent/perennial nature ofjob , having conferred designation & independent handling of assigned task is legal and justified . If not, what relief the workmen are entitled to ?

ListofWorkmen as per Annexure -A 1. Sri D.C. Thatari .

2. Sri Suryamani Haasda .

3. Sri Jitendra Kr . Dash .

4. Sri Janardan Sahoo .

5. Sri Laxman Nath Soren .

6. Smt. Suku Tudu .

7. Sri Khetrabasi Dehuri

8. Sri Gadahar Mahanta .

9. Sri NiranjanGeddi .

2. After receipt of the above reference both the parties filed their Claim Statement and counter . While the matter was pending for settlement of issues the General Secretary of the Federation filed at first a petition on 16-4-2007 to drop the case. While this petition was pending for consideration the self same Secretary of the Federation filed today the 10th July 2007 another petition enclosing thereto a minutes of discussion held between the Management and the Federation on 15-5-2007 and contended to pass an award as per the terms of such settlement . On perusal of Para - 2 of the above settlement it is gathered that the Management having agreed to the demands of the Union has now decided to give non- permanent status to the DRMP workers like the disputants inquestion, whereby these workers group wouldbe entitled to get 1 /30th basic pay of a regular employee plus proportionate D.A towards their daily remuneration . In view of the above settlement there remains nothing for the Tribunal to answer the reference .

3. Accordingly the reference is answered in terms. of the above settlement of the parties .

N. K. R. MOHAPATRA , Presiding Officer नई दिल्ली, 23 जुलाई , 2007

का.आ. 2259.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार उड़ीसी माईनिग कॉपोरेशन के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय भुवनेश्वर के पंचाट ( संदर्भ संख्या आई.डी.सं. 19/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-07-2007 को प्राप्त हुआ था।

[सं. एल -29011/8/ 2004- आई आर ( एम ) ]

एन. एस. बोरा , डेस्क अधिकारी 5308

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20 , 1929

New Delhi , the 23rd July , 2007

S.O. 2259.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref . No. ID No. 19/2004 ) of the Central Government Industrial Tribunal / Labour Court , Bhubaneswar now as shown in the Annexure inthe Industrial Dispute between the employers in relation to the management of Orissa Mining Corporation and their workman, which was received by the Central Government on 23-07-2007 .

[No. L-29011 /8/2004- IR (M)]

N. S. BORA , Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, BHUBANESWAR

PRESENT

Shri N.K.R. Mohapatra, Presiding Officer,

INDUSTRIAL DISPUTE CASE NO . 19/2004 Date ofPassing Award- 10th July , 2007

BETWEEN:

1. The Management of Managing Director , M/s. Orissa Mining Corporation , OMC House, Bhubaneswar- 751001 , Orissa .

2. The Manager (Mines) ,

Kathpal Chromite Mines of M/ s . OMC Ltd. , P.O. Kalarangitta, Jajpur (Orissa) .

1stParty -Managements .

AND

Their Workmen , represented through

TheGeneral Secretary, Orissa Mining Workers Federation , C/ o . OMC Ltd. OMC house , Bhubaneswar .

...2nd Party-Union APPEARANCES :

For the 1st Party -Management S.R. Pattnaik , Manager , Legal .

For 2nd Party-Union .

Shri A.K. Samal , General Secretary.

AWARD

TheGovernment of India in the Ministry of Labour , inexercise ofpowers conferred by Clause (d) of sub- section ( 1 ) and sub - section 2(A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947) have referred the following

[PART II-SEC . 3 (ii ) ] dispute for adjudication vide their Order No. L- 29011/8/ 2004- IR (M) , dated 17-03-2004 :-

"Whether the action of the Management of M/s. OrissaMining Corporation Ltd. , in relation to their Kathpal Chromite Mines in not providing equal pay of equal work to the workmen (the details of whom are given in Annexure- A subject to transfer to any other Mine & Prospecting Camp by the Management ) incompatibility with their regular counterpart engaged in the Establishment and not regularizing them in the permanent posts of M/ s . OMC considering their length of service being engaged in permanent/perennial nature ofjob, having conferred designation & independent handling of assigned task is legal and justified . If not , what relief the workmen are entitled to? "

List ofWorkmen as per Annexure-A 1. Sri Jayaram Munda .

2. Sri Jagan Baipai

3. Smt . Kuni Mahanta .

4. Sri Dillip Kr . Parida.

5. Sri Srikant Kr . Singh .

6. Sri . Hemanta Kr . Singh .

7. Sri Madhusudhan Prusty .

8. Sri Biju Munda .

9. Sri Arjuna Mahanta.

10. Sri AnandaMajhi .

11. Sri Dhanu Munda .

12. Sri Purna Ch . Nayak .

13. Sri Kuna Tysan .

14. Sri Pandab Mnda .

15. Sri Bena Munda .

16. Sri Mana Munda .

17. Sri Santosh Kr . Moharana .

18. Sri Damu Tudu .

19. Sri Ramachandra Marandi .

5309

भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

contended to pass an award as per the terms of such settlement. On perusal of Para- 2 of the above settlement it is gathered that the Management having agreed to the demands of the Union has now decided to give non- permanent statusto the DRMP workers like the disputants in question, whereby these workers group would be entitled to get 1 /30th basic pay of a regular employee plus proportionate D.A towards their daily remuneration . In view of the above settlement there remains nothing for the Tribunal to answer the reference .

3. Accordingly the reference is answered in terms of the above settlement of the parties.

N. K. R. MOHAPATRA , Presiding Officer नईदिल्ली, 23 जुलाई , 2007

का.आ. 2260.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार उड़ीसा माईनिग कॉपोरेशन के प्रबंधतंत्र के संबद्ध नियोजकों और उनके 'कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय भुवनेश्वर के पंचाट ( संदर्भ संख्या आई.डी.सं. 17/2004 ) को प्रकाशित करती है , जो केन्द्रीयं सरकार को 23-07-2007 को प्राप्त हुआ था ।

[ सं. एल -29011/6/2004- आई आर ( एम ) ] एन. एस. बोरा , डेस्क अधिकारी New Delhi , the 23rd July , 2007

S.O. 2260.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. ID No. 17/2004 ) of the Central Government Industrial Tribunal/ Labour Court, Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Orissa Mining Corporation and their workmen , which was received by the Central Government on23-07-2007 .

[No. L- 29011/6/2004- IR (M)]

N. S. BORA , Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, BHUBANESWAR

PRESENT

Shri N.K.R. Mohapatra , Presiding Officer ,

INDUSTRIAL DISPUTE CASE ΝΟ . 17/2004 Date of Passing Award- 10th July , 2007

BETWEEN

3287 G1/07-24

1. The Management of Managing Director , M/s.OrissaMining Corporation , OMC House , Bhubaneswar---751 001 , Orissa .

2. The Camp Officer , Chirigunia

Prospecting Camp of M/s . OMC Ltd. , P.O. Kalarangitta, Jajpur (Orissa) .

1stParty-Managements .

AND

TheirWorkmen , represented through

TheGeneral Secretary , Orissa Mining Workers Federation , C/o . OMC Ltd. OMC house , Bhubaneswar .

..2nd Party- Union APPEARANCES

..For the 1st Party-Management S.R. Pattnaik , Manager , Legal .

For 2nd Party-Union .

Shri A.K. Samal , General Secretary.

AWARD

TheGovernment of India in the Ministry of Labour, in exercise of powers conferred by Clause ( d ) of sub - section (1) and sub - section 2(A) of Section 10 of the Industrial DisputesAct, 1947 ( 14 of 1947) have referred the following dispute for adjudication vide their Order No. L - 29011 / 6 / 2004- IR (M), dated 17-03-2004 :-

"Whether the action of the Management of M/s. Orissa Mining Corporation Ltd. , in relationto their Chirigunia Prospecting Camp in not providing equal pay of equal work to the workmen ( the details ofwhom are given in Annexure - A subject to transfer to any other Mine & Prospecting Camp by the Management) incompatibility with their regular counterpart engaged in the Establishment and not regularizing them in the permanent posts of M/s. OMC considering their length of service being engaged in permanent/perennial nature ofjob , having conferred designation & independent handling of assigned task is legal and justified. If not , what relief the workmen are entitled to ? "

List ofWorkmen as per Annexure-A 1. Sri Mata Munda .

2. Sri Kirtan Maharana .

3. Sri Raghunath Hembram .

4. Smt. Gangi Munda .

5. Sri Madha Tiria .

6. Sri . Bansidhar Champia.

7. Smt. Saraswati Munda .

5310

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

[PART II SEC. 3 ( ii) ] 8. Sri Tankadhar Dehuri .

ANNEXURE

9. Sri BacoinsekharHasda .

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT, BHUBANESWAR

10. Sri Mirza Zahir Baig..

PRESENT

11. Sri Upendra Kumar Pradhan .

Shri NK . R. Mohapatra , Presiding Officer ,

INDUSTRIAL DISPUTE NO . 36/2002

DateofPassing Award-29th June , 2007 BETWEEN

TheManagement of the Chairman ,

Paradip Port Trust , Paradip , Jagatsinghpur, Orissa- 754 142 .

1stParty -Management.

AND

Their Workmen , represented through the General Secretary , Qr . No. D -5 , V Point , Paradip Port Trust, Jagatsinghpur - 754142 .

... 2nd Party -Union 2. After receipt of the above reference both the partiesfiled their Claim Statement and counter . While the matter was pending for settlement of issues the General Secretary of the Federation filed at first a petition on 16-4-2007 to drop the case . While this petition was pending for consideration the self same Secretary of the Federation filed today the 10th July, 2007 another petition enclosing thereto a minutes of discussion held between the Management and the Federation on 15-5-2007 and contended to pass an award as per the terms of such settlement . On perusal of Para - 2 of the above settlement it is gathered that the Management having agreed to the demands of the Union has now decided to give non- permanent status to the DRMP workers like the disputants in question, whereby these workers group would be entitled to get 1/ 30th basic pay of a regular employee plus proportionate DA towards their daily remuneration . In view of the above settlement there remains nothing for the Tribunal to answer the reference .

APPEARANCES

Shri Adwait Kr. Das .

3. Accordingly the reference is answered in terms of the above settlement of the parties.

Legal Assistant .

Forthe 1st Party- Management

For the 2nd Party- Union .

N. K. R. MOHAPATRA, Presiding Officer नई दिल्ली , 23 जुलाई , 2007

Shri B.N. Das , Vice President .

AWARD

The Government of India in the Ministry of Labour , in exercise of powers conferred by Clause ( d) of sub- section ( 1 ) and sub-section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) have referred the following dispute for adjudication vide their OrderNo. L-38011/3 /2001 - IR (M) , dated 11-2-2002:--

का.आ. 61.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार पारादीप पोर्ट ट्रस्ट के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , भुवनेश्वर के पंचाट ( संदर्भ संख्या आई.डी. सं. 36/2002) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-07-2007 को प्राप्त हुआ था।

[सं. एल-38011/3/ 2001- आई आर ( एम) ] एन. एस. बोरा , डेस्क अधिकारी

New Delhi , the 23rd July, 2007

"Whether the action of the Paradip Port Management by not allowing HRA to employees those who are residing in Dormitory , Bachlor Barrack and Type - I Quarter is justified ? If not, what relief the employees are entitled to ? "

S.O. 2261.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Govemment here by publishes the Award ( Ref. No.ID No. 36/2002 ) of the Central Government Industrial Tribunal / Labour Court , Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the employers in relation tothe management of Paradip Port Trust and their workman , which was received by the Central Government on 23-07-2007.

[No. L -38011 /3/2001 - IR (M )]

N. S. BORA , Desk Officer

2. After receipt of the above reference bnth the parties filed their claim statement and written statement. It isborn on record that while the case was pending for hearing the Union took time after time to get ready and ultimately on 1-6-2005 presented a pitition to close the case alleging to have settled the matter with the Management . But as no such settlement was filed the case as usual was postedto differents dates for hearing exclusively on the prayer of the Union. While this being the position , on 12-6-2007 the Union filed another petition enclosing thereto a Memorandum of Settlement dated 23-5-2007 with a prayer 5311 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खण्ड 3( ii) ]

REPRESENTATIVES

Sri P. K. Das , Advocate .

For the management :

to close the case in terms of such settlement. On the relevant day the Management was found absent for which the General Secretary of the Union was alone heared on such settlement .

Sri M. Mukherjee , Advocate .

Forthe union (Workman ) :

INDUSTRY: COAL STATE : WEST BENGAL

Dated the 25-04-2007

AWARD

3. From the terms of the settlement dated 23-5-2007 a copy of which has been filed , it transpires that , during pendency of this case the Management having come to terms with the Union has already started paying house rent allowance to those ofthe workers residing in dormitory , bachelor barrack and Type - I quarters as per its Office Memorandum No. Ad/RR/42/ 17/9101 , dated 23-12-1997 leaving no rooms for the Tribunal to decide the dispute any further.

4. Accordingly the reference is answered as nonest.

Inexercise ofpowers conferred by clause (d) of sub- section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , Govt . of India through the Ministry of Labour vide its letter No. L- 22012/ 435/97- IR(C - II ) ) dated 27-11-98 has been pleased dated to refer the following dispute for adjudication by this Tribunal .

N. K. R. MOHAPATRA, Presiding Officer

SCHEDULE

नई दिल्ली , 19 जुलाई , 2007

का.आ.

"Whether the action of the Management of Adjoy - II Colliery under Sripur Area ofM/s, ECILin dismissing Sh , Md . Issaque Mia, Security Guard on the charges of ( i ) gross negligence of work ( ii ) disobedience of lawful instructions of superiors and (iii ) violation of IndianExplosive Act is justified ? If not, to what relief is the workman entitled ? '

2262.- औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण आसनसोल के पंचाट ( संदर्भ संख्या 55/1998 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-07-2007 को प्राप्त हुआ था ।

[सं. एल-22012/435/1997- आई आर ( सी- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 19th July , 2007

S.O. 2262. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref . No. 55 of 1998) of the Central Government Industrial Tribunal - cum- Labour Court. Asansol as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of ECL and their workman , which was received by the Central Government on 19-07-2007.

[No. L- 22012/435/ 1997 - IR (C - II)]

After having received the Order No. L- 22012/435/97- IR(C- II )) dated 27-11-98 of the aforesaid reference from the Govt . of India, Ministry of Labour , New Delhi for adjudication of the dispute , a reference Case No. 55 of 1998 was registered on 28-12-98 and accordingly an order to that effect was passed to issue notices to the respective parties through the registered post directing them to appear inthe court on the date fixed and file their written statement along with the relevant documents and a list of witnesses insupport of their claims . Pursuant to the said order notices were issued to the parties concerned by the registered post . Sri P.K.Das , Advocate and Sri M. Mukherjee Advocate appeared in the court with the power of attorney to represent the management and the union respectively. Boththe parties filed their written statements in support of theirrespective claim.

AJAY KUMAR , Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVT, INDUSTRIAL TRIBUNAL- CUM - LABOUR ~~COURT, ASANSOL .

PRESENT:

Sri Md. Sarfaraz Khan , Presiding Officer .

REFERENCE NO . 55 OF 1998

PARTIES : Agent, Adjoy- II Colliery of ECL, Charanpur , Burdwan

Vrs.

From the perusal of the record it transpires that the record was fixed for hearing on preliminary point and the management was directed to file their enquiry report . The record further goes to show that 25-4-07 was also the fixed date for the same . Both the representative of the parties were present . The learned lawyer of the union submitted that the union is not taking any interest and he has got no instruction either from the side of the union or the workman himself and made an endorsement to that effect in the margin of the record . He further submitted that he does not wantto proceed further with the record in absence of any instruction . As such it is clear that the union and the workman have lost their interest in this case . So it is not just, proper and advisable to keep the old record pending any more. Accordingly it is hereby .

The Org . Colliery Mazdoor Sabha (AITUC) , Asansol , Burdwan .

5312

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20 , 1929

[PART II -SEC . 3 ( ii) ] ORDERED

Industry: Coal more State : West Bengal .

Dated 19-6-2007

AWARD

that let a "No Dispute Award" be and the same is passed . Send the copies of the Award to the Govt . of India , Ministry of Labour, New Delhi for information and needful . The reference is accordingly disposed of.

MD. SARFARAZ KHAN , Presiding Officer

नई दिल्ली , 19 जुलाई , 2007

In exercise of powers conferred by clause ( d) of sub- section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , Govt . of India through theMinistry of Labour vide its letter No. L- 22012/ 350/95- IR( C- II ) ) dated 11 / 15-7-97 has been pleased to refer the following dispute for adjudication by this Tribunal .

SCHEDULE

का.आ. 2263.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , आसनसोल के पंचाट ( संदर्भ संख्या 48/1997 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 19-07-2007 को प्राप्त हुआ था ।

"Whether the action of the Management of Bankola Colliery under Bankola Area of M/s. ECL in dismissing Sh . Jogi Rout , U.G. Loader from services w.e.f. 4-6-93 is legal and justified? If not , to what relief is the workman entitled to ? "

[सं. एल-22012/350/1995- आई आर ( सी- II ) ] अजय कुमार गौड़, डेस्क अधिकारी

New Delhi , the 19th July , 2007

S.O. 2263.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 48 of 1997) of the Central Government Industrial Tribunal - cum- Labour Court , Asansol , now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of ECL and their workman , which was received by the Central Government on 19-07-2007 .

[No. L -22012/350/ 1995 - IR (C- II) ]

AJAY KUMAR GAUR , Desk Officer

ANNEXURE

Onhaving received the Order No. L - 22012/350/95- IR(C- II ) ) dated 11 / 15-7-97 of the aforesaid reference from the Govt . of India, Ministry of Labour , New Delhi for adjudication ofthe dispute , a reference Case No. 48 of 1997 wasregistered on 28-7-97 and accordingly an order to that effect was passed to issue notices to the respective parties through the registered post directing them to appear in the court on thedate fixed and file their written statement along with the relevant documents and a list of witnesses in support of their claims . In pursuance of the said order notices were issued by the registered post to the parties concerned . Sri P.K.Das , Advocate and Sri M. Mukherjee, Advocate appeared in the court with the power of attorney granted by the competent authority to represent the management and the union respectively .

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

PRESENT

SetMd Sarfaraz Khan , Presiding Officer

Reference No. 48 of 1997

PARTIES: Agent , Bankola Colliery of ECL , Ukhra , Burdwan

Vrs.

From perusal of the record it transpires that written statement were filed by the side of both the parties in support of their respective claim. It is further clear from the order sheets of the record that the case was fixed for hearing on merit of the case . It further transpires forom the record that the union left taking any step right from 9-3-06 to 19-6-07 and no step was being taken by the lawyer too which go to indicate that the union or the workman is not interested to continue and proceed with the case further . So it is not just and proper to keep this old record pending any more as no useful purpose is to be served . As such it ishereby.

ORDERED

The Jt . General Secretary , Colliery Mazdoor

Union , Ukhra, Burdwan .

REPRESENTATIVES

Sri P. K. Das , Advocate .

For the inanagement:

That let a "No Dispute Award" be and the same is passed. Send the copies of the award to the Govt . of India , Ministry of Labour , New Delhi for information and needful . The reference is accordingly disposed of.

Forthe union (Workman) : Sri M. Mukherjee, Advocate .

Md . SARFARAZ KHAN, Presiding Officer 5313 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

नई दिल्ली , 20 जुलाई , 2007

to both parties. Both sides entered appearance and filed their claim statement and Counter Statement respectively . Afterthe 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. 236/2004.

2. The Schedule mentioned in that order is as follows:-

का.आ. 2264, 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 236/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 19-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/439/98- आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th July, 2007

"Whether the demand of the workman Shri C. Krishnan , wait list No. 590 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 Claim Statement are briefly as follows :-

S.O. 2264.In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 236 / 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 Government on 19-7-2007 .

[No. L- 12012/439/98 - IR (B - I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT:

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 236/2004

[Principal Labour Court CGID No. 163/99]

(Inthe matter of the dispute for adjudication under clause(d) ofsub - 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 )

BETWEEN

Sri C. Krishnan

: I Party/Petitioner

AND

The Assistant General Manager, II Party/Management State Bank of India , Z. O. Chennai ,

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative .

: M/s . K. Veeramani ,

For the Management

Advocates .

AWARD

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 temporary basis at Sidco Industial Estate , Ambattur branch from 20-81981 . 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 filedby StateBank Employees ' Union in Writ PetitionNo. 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 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Ambattur Industrial Estate Branch. He was called for an interview by aCommittee 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 20-08-1981 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in IAF , 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 1. The Central Government Ministry of Labour , vide Order No. L- 12012/439/98 - IR ( B - I) dated 12-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 163/99 and issued notices 5314

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

[PART II-SEC . 3 ( ii ) ] 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 ofthe 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 indue 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 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 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 whim and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. tothe 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 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 .

Federation which resulted in five settlements dated 17-11-87, 16-07-88,07-10-88 , 09-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) ofI.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 wait listed as candidate No. 586 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 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 (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 whohave 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 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 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 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 of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was waitlisted at 586 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 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 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 [ भाग II- खण्ड 3( ii ) ]

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 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 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 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 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 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 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 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 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. 590 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

5315

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

(ii) "To what relief the Petitioner 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 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 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 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 the workmen 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 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 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 .

[PART II-SEC . 3 (ii)] THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929

support of the so called non- inclusion except his bald statement . Further , according to MWI wait list under Ex . M 10was prepared on 2-5-92 but there is no pleading in the Counter 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 , in which it is stated that ' it is clear that the 1987 settlement wasconcernedwith 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 mutual agreement basis . In such circumstances , 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 of Constitution of India . ' Further , the averment of MW1 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 . It is further contended on behalf of the Petitioner that as per deposition of MW1 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 paidwages 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 of absorption . Therefore , it is violative of Article 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex. M 1 namely wait list is not inconformity with the instructions of Ex. M 2 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. 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. M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex. M 1 was not produced at the time of conciliation proceedings held during the year 1997-98 held atChennai 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 inleave vacancy . Further , even before or after the settlement applicable to the Petitioners who are retrenched messengers 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 OTHERSthe Supreme Court has held that Chapter V -A of the I.D. Act providing for retrenchment is not enacted only forthe benefit of the workmen to whom Section 25F applies butforall cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category ofretrenched workmen . 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 issuedfrom time to time in connection with the implementation ofthe settlements on absorption and which are statutory in character. Further , a combined study of Ex . Ml and the averments of MW 1 and MW2 and their testimonies during thecross - examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking hisfuture with the settlements . Further, Clause 1 of Ex . M1 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 1 is illegal . Clause 1 (a ) of Ex . M1 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 of the guidelines mentioned in Reference Book on Staff matters , copyofwhich 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 casuals along with theeligible 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 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 1 is unable to say as to when the wait list Ex. M10 was prepared , but it is mentioned in Ex. M10 that it wasprepared based on the settlement dated 17-11-87, 27- 10-88 and 9-1-91 which are marked as Ex . MI , M3 andM4 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 5317 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

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 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 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 inthe connected I.Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II 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 onlywhen theworkmen 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 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 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 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 are in age group of 40 to 50 years and for no fault 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.

onabsorption 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 I.D. 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 SastryAward 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 that " to 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 workmen is illegal . " Learned representative further contended that Ex . 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 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, but in utter violation and in breach of it . Though clause 2(e) ofEx. 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 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 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 averment of MW1 . Therefore, thetermination of the Petitioner who was in regular service ofthe Respondent/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 produced Ex.M6which 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 Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 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/ Management has examined two witnesses , the deposition ofmanagement witnesses during the cross examination hadbecome apparent that they have no personal knowledge about the settlements which are marked as Ex . Ml to M5 . Above all, though the Respondent/Bank has referred to

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929

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 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 workmen also . " He further relied on the. rulings reported in AIR 2000 SC 469 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 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 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 , 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 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 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 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 contended by the Petitioner 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 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 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 Bank and the claim of the Petitioners are not bonafide and aremade 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 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 Employment Exchange 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 werebonafide which were the only workable solution and isbinding 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 settlements and operate throughout the country. Further, he relied on therulings reported in 1991, ILLJ 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 claim of 11 workmen 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 conciliation is vitiated by fraud, misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 union will be binding on all workmen of the establishment, even thosewho belong to the minority union which had objected to the same. To that extent , it departs 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 aminority 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 rulings 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 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 5319 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II-खण्ड 3 ( ii) ]

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 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 1998 LAB IC 1664 VAN SAG NATHAN 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 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 attemptto 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 argued thatin Express Newspapers P. Ltd. case reported in AIR 1993 SC 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 . TheLabour 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 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 ofthe 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 .

reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V.VIJEESH 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 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 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 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 6SCC584 SYNDICATE BANK & ORS. Vs. SHANKAR 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 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 oftheir 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 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 thewait 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 . 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 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 him which means creation of a vacancy; (b) he 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 5320

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC. 3(ii)]

be construed to be a retrenchment 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 daily wage employees and have no right to the posts, theirdisengagement is not 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 I.D. Act retrenchment procedure following principle of 'lastcome first go' is not mandatory but only directory , onsufficient 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 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 costs.

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 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 presumptionmaybe justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of oneunit 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 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 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 untenable and unsustainable . Thus, the Supreme Court set aside the orders oflower Courts He further relied on the decision reported in 1997 IISCC 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 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 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 isgiven, 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 theseemployees, 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 inthe 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 daily wages . Under these circumstances , their disengagement from service cannot

15. Learned Senior Advocate further argued that even inrecentdecision reported in 2006 4 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 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 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 isnot 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 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 ofpublic 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 would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if 5321 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

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 . 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 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 reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled 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 240 days of continuous 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 Govenment 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 original appointment was not made by following a due process of selection as envisaged by relevant rules . Further, 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 an employee upon the expiry of purported period ofprobation 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 . 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 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 Govenment in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position, as noticed hereinbefore . "

PointNo. 2:

The next point to be decided in this case is to what relief the Petitioner is entitled?

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 January . 2007. )

K. JAYARAMAN, Presiding Officer

Witnesses Examined :-

For the Petitioner

WW1 Sri C. Krishnan WW2Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan 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 ofhis 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 wasonly 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. Under such circumstances , it cannot be questioned by the Petitioner.

MW2 Sri C. Ramalingam

Documents Marked:-

Ex. No. Date

Description

W1 1-8-88 Xerox copy of the papaer publication in daily Thanthi based on Ex . M1 .

W2 20-4-88 Xerox copy of theadministrative guidelines Issued by Rspondent/Bank forimplementation ofEx .M1 .

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SEC . 3 (ii)]

W20 31-03-97

24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement inThe Hindu on daily Wages based in Ex . W4.

Xerox copy of the appointment order to Sri G. Pandi .

Feb. 2005

W21

Xerox copy of the pay slip of T. Sekar forthe month of February , 2005 wail list No. 395 ofMadurai Circle .

W22 13-02-95

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending Period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai About filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of massenger vacancies and filling them before 31-3-97.

Nil

Xerox copy of the instruction in Reference book on staff about casuls not to be angaged at office/branches to do messengerial work.

W9 21-02-85 Xerox copy of the interview letter from Respondent/Bank Branch.

06-04-82

W10

Xerox copy of the service certificate issued by Ambattur Industrial Estate Branch.

19-12-97

W11

Xerox copy of the service certificate issued by MRL Branch .

W12 Nil

Xerox copy of the service certificate issued by AFS Avadi Branch .

W13 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding appointment of temporary employees.

Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of wait list .

09-11-92,

W23

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of Messenger staff.

09-07-92

W24

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W25

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 .

07-02-06

W26

Xerox copy of the local head Office circular about Conversion of part time employees and redesignate them as general attendants.

31-12-85

W27

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management :---

Ex . No. Date

Description

Xerox copy of the settlement. 17-11-87

Хегоx copy of the settlement. 16-07-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

M4

09-01-91

W14 Nil Xerox copy of the Reference book on Staffmatters Vol . III consolidated upto 31-12-95.

06-03-97

WI5

Xerox copy ofthe call letter from Madurai zonal office For interview of messenger post--V. Muralikanman.

06-03-97

W16

Xerox copy of the call letter from Madurai zonal office For interview of messenger post-K. Subburaj .

06-03-97

W17

Xerox copy of the call letter from Madurai ZonalOffice for interview of messenger post-J. Velmurugan .

17-03-97

W18

Xerox copy of the service particulars- J Velmurugan .

26-03-97

W19

Xerox copy of the letter advising selection of part time Menial -G . Pandi .

Хегox copy of the settlement .

30-07-96

M6 09-06-95 Xerox copy of the minutes of conciliation proceedings.

M7 28-05-91 Xerox 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 of High Court of Orissa .

M9 10-07-99 Xerox copy of the order of Supreme Court inSLP No. 3082/99 .

M10 Nil Xerox copy of the wait list of Chennai Module.

25-10-99

M11

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

नई दिल्ली, 20 जुलाई, 2007

का.आ. 2265.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 28/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था । [सं. एल-12012/432/ 1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 20th July, 2007

S.O. 2265. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 228/2004) of the Central Govt . 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 on 20-7-2007 .

[No. L- 12012/432/ 1998- IR (B - I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday , the 31st January , 2007

PRESENT

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 228/2004

(Principal Labour Court CGID No. 127/99) (Inthe matter of the dispute for adjudication under clause (d) ofsub- section ( 1 ) and sub - section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen)

BETWEEN

Sri P. M. Ganesan

: I Party/Petitioner

AND

The Assistant General Manager , II Party/Management State Bank of India , Z. O. Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram ,

Authorised Representative .

For the Management : M/s . K. S. Sundar , Advocates.

5323

AWARD

1. The Central Government Ministry of Labour , vide Order No. L - 12012/ 432/98 - IR (B - I) dated 10-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 127/99 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 I. D. No. 228/2004.

2. The Schedule mentioned in that order is as follows: -

"Whether the demand of the workman Shri P. M. Ganesan , wait list No. 415 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 Claim Statement 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 messenger after an interview and medical examination. He was appointed on temporary basis at Ponneri branch from 14-04-1982 . 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 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 settlement under Section 18 ( 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Ponneri 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 tojoin at the branch where he initially worked as a classIV employee. From 14-04-1982, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Ponneri branch , another advertisement 5324

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

[PART II-SFC. 3 ( ii ) ] 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 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 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 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 tothe 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 25G & 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 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 circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing 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 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 .

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 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 and 30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under 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 employees and the Petitioner was wait listed as candidate No. 415 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 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 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 (A) the temporary employees who were engaged for 240 days were to be considered and under category ( B ) the temporaгу 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 minimum 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 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 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 listed at 415 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 his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far

i [भाग II- खण्ड 3 ( ii ) ]

5325 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

7. In these circumstances , the points for my consideration are :-

(i) "Whether the demand of the Petitioner in Wait List No. 415 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 :-

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 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 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 wait list forthe appointment of temporary employees . Afterthe 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 selected and wait listed in terms of the 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 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 the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (civil) of 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 . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M 1. 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 .

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 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 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.

[PART II -SEC. 3 ( ii ) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929

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 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 who are retrenched messengers 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 I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category ofretrenched workmen . Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceablerceable 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 of the settlements 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 cross - examination will clearly show how the bank has givena raw dealto the Petitioner from the beginning linking hisfuture with the settlements . Further , Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of 'A, B& C' isquite opposed to the doctrine of " last come-first go' or first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex.M1 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 oftemporary employees 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 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 atqualifying 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 appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, butit 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 MW1 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 to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter 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 , in which it is stated that it is clear that the 1987 settlement was concemed 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 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 treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment of MW1 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 . Itis further contended on behalf of the Petitioner that as perdeposition of MW1 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 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 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 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. 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 . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M 1 was not [ भाग II- खण्ड 3 ( ii ) ]

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tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , theydo 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 marked as Ex . Ml 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 and itconstitutes 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 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 andtherefore, they are deemed to be in continuous service of the 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 I.Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II 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 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 letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reportedto 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 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 andthey are in age group of 40 to 50 years and for no fault 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.

produced at 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 thatthese 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 clause 2 ( oo ) of the I.D. 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 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 that " to 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 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 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 , 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 in case, a candidate fails to accept the offer of appointment orposting within the prescribed period , he will be deemed to have refused it and the name shall stand deletedfrom 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 anydocument 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 the averment of MW1 . 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 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 claimedby the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M1 1 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

rulings 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 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 second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even incase 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 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 SC 469 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 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 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 mustbe 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 , 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 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 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 contended by the Petitioner and not reinstatement as alleged by the Petitioner inthe Claim Statement.

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive inthematter oftenability of a reference and he relied on the 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 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 madewith ulterior motive . Further , they have concealed thematerial 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 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 heworked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation werebonafide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlementand accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indifectly 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 therulings 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 claim of 11 workmen and the workmen resigned from the joband received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily.Butthe 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 . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 conciliationproceedings with a recognised majority union will be binding on all workmen of the establishment , even thosewho belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity ofsettlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " Itfurther held that " there may be exceptional cases , where there maybe 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 [ भाग II- खण्ड 3 ( ii ) ]

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is not questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement.

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 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 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 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 1998 LAB IC 1664 VAN SAG NATHAN 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 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 order under reference in a technical manner or a pedantic manner , but should consider the order ofreference ina 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 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 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 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.

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

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 inthe 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 daily wages . Under these circumstances, 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 , their disengagement is not 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 I.D.Act retrenchment procedure following principle of ' lastcome - first go ' is not mandatory but only directory, onsufficient 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 Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . Insuch 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 costs.

15. Learned Senior Advocate further argued that even in recent 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 , 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 theCourt 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 held that " it is not as if, the person who accepts an engagement either temporary or casual in nature isnot 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 livelihood and accepts whatever he gets . But on that ground alone, it would not be appropria 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 ofpublic appointment which is not permissible. " Further, 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 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 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 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 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 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 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 mouided 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 II SEC 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 entry itselfwas 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 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 isgiven, 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 . " Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to [ भाग II- खण्ड 3 ( ii ) ]

5331 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

17. I find much force in the contention of the learned 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 betweenthe Respondeht/Bank and Federation , at the time ofreference , 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 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 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 cannot 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 same relief.

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 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 FERTILIZERS LTD . AND OTHERS VS. SOMVIR SINGH , wherein the SupremeCourt 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 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. 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 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 uponhim 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 policydecisions of the Govt . 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 ?

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 daythe 31st January , 2007. )

K. JAYARAMAN , Presiding Officer

Witnesses Examined:

Forthe Petitioner

WW1 Sri P.M. Ganesan WW2 Sri V. S. Ekambaram 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 estoppedfrom 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. Under such circumstances , it cannot be questioned by the Petitioner.

For the Respondent MWI Sri C. Mariappan MW2 Sri C. Ramalingam .

5332

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

[PART II-SEC. 3 (ii) ]

W18 17-03-97

Documents Marked:-

Ex. No. Date

Description

W1 01-08-88 Хегоx copy of the paper publication in daily Thanthi based on Ex. M1 .

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex.M1 .

W3 244-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies:

W4 01-05-91 Хегох copy of the advertisement in the Hindu on daily Wages based on Ex . W4 .

W5 20-08-91 Xerox copy of the advertisement in the Hindu extending period of qualifying serviceto daily wagers .

W6 15-03-97 Xerox copy of the circular letter ofZonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97

Xerox copy of the service particulars- J.Velmurugan .

26-03-97

W19

Xerox copy of the letter advising selection ofparttime Menial-G. Pandi .

31-03-97

W20

Xerox copy of the appointment orderto SriG.Pandi.

Feb. 2005

W21

Xerox copy of the Pay Slip of T. Sekar forthe month of February , 2005 wait list No. 395 ofMadurai Circle .

13-02-95

W22

Xerox copy of the Madurai Module Ciruclar letter about Engaging temporary employees from the panal of wait list .

09-11-92

W23

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff.

09-07-92

W24

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W25

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms creation of parttime general attendants .

W26 07-02-06

Хегоx copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instructions in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work.

W9 09-12-94 Xerox copy of the service certificate issued by Ponneri Branch .

15-04-95

W10

Xerox copy of the service certificate issued by Madras Harbour Branch Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

31-12-85

W27

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

Forthe Respondent/Management :-

Ex. No. Date

19-07-95

W11

Xerox copy of the service certificate issued by Manali MFL branch .

17-02-97

W12

Xerox copy of the service certificate issued by Ponneri branch .

W13 Nil Xerox copy of the administrative guidelines in Reference book on staff matters issued by Respondent/Bank regarding appointment of temporary employees .

W14 Nil

Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95.

06-03-97

W15

Xerox copy ofthe call letter from Madurai ZonalOffice for interview of messenger post-V. Muralikannan .

W16 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-K. Subburaj .

06-03-97

W17

Xerox copy of the call letter from Madurai ZonalOffice for interview of messenger post-J. Velmurugan .

Description

Xerox copy of the settlement .

17-11-87

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

09-01-91

Хегоx copy of the settlement .

30-07-96

M6 09-06-95 Xerox copy of the minutes of conciliation proceedings .

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91 .

M8 15-05-98 Xerox copy of the order in O. P. No. 2787/97 ofHigh Court of Orissa.

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99.

M10 Nil Xerox copy of the wait list of Chennai Module.

25-10-99

M11

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

[ भाग II- खण्ड 3 ( ii ) ]

5333 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20 , 1929

नई दिल्ली , 20 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 I.D.No. 222/2004.

2. The Schedule mentioned in that order is as follows:-

का.आ. 2266. 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 222/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/378/98- आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

"Whether the demand of the workman Shri M.P. Sugumar , wait list No. 457 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 Claim Statement are briefly as follows :-

New Delhi , the 20th July , 2007 S.O. 2266. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 222/ 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 Government on 20-7-2007 .

[No. L- 12012/378/98 - IR (B - 1) ] AJAY KUMAR, Desk Officer

ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, CHENNAI

Wednesday, the 31st January , 2007

PRESENT

Shri K. JAYARAMAN, Presiding Officer Industrial Dispute No. 222/2004 (Principal Labour Court CGID No. 96/99 )

(Inthe matter ofthe 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 Management of State Bank of India and their workmen)

BETWEEN

SriM.P. Sugumar

: IParty/ Petitioner

AND

TheAssistant General Manager , II Party/Management State Bank of India , Z. O. Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative .

For the Management : M/ s . K. S. Sundar , Advocates .

AWARD

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 temporary basis at Karumbur branch from 02-03-1981 . 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 settlement underSection 18 ( 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the 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 initially worked as a class IV employee. From 02-03-1981 , the Petitioner has been working asa temporary messenger and some time performing work in other branches also . While working on temporary basis in Karumbur 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 thebranch 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 1. The Central Government Ministry of Labour , vide Order No. L- 12012/378/ 98 - IR (B - I ) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 96/99 and issued notices

3287 GI/07-27 [PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

5334

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 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 stand that the service and the number ofdays worked by Petitioner were treated as of no consequence, since according to the Respondent/Bank , itengaged 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 , 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 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. tothe 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 serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant reliefofregular employment in Respondent/Bank with all attendant benefits .

The said settlements became subject matter of conciliation proceedings and minutes 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 Petitioner was wait listed as candidate No. 457 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 retrenchment provisions referred to above. cannotturn 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 (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 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 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 31-3-1997 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 aforesaid temporary employees were working in leave 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 457 he 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 werenot 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 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 temporary 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 I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . Theclaim 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 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 whentheir 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 and 30-7-1996.

14 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

5335

Point No. 1 :

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 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 inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been calied 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 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 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 toprotect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Fetition 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 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 .

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 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 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 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 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 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 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 : -

(!) "Whether the demand of the Petitioner in Wait List No. 457 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 ? "

5336

there is no pleading in the Counter 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 , 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 paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondents 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 14 of Constitution of India . ' Further , the averment of MW1 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 isfurther contended on behalf of the Petitioner that as perdepositionof MW1 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 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 violative of Articles 14 & 16 ofConstitution 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 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. 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 . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex.M1 was not produced atthe 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 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 contendedthat 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 I.D. Act providing for retrenchment is not enacted only for the benefit of the workmento 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 workmen . 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 onbehalf 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 withthe implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of IMWI and MW2and their testimonies during the cross - examination willclearly 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 . M1 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 ' orfirst come - last go ' and therefore , the categorization in Clause i isillegal . Clause 1 ( a) of Ex.Mi provides an opportunity to persons who were engaged on casual basis and allowed towork in leave/casual vacancies of messengers , farashes , cash coolies,water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees isnot valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in ReferenceBook 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 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 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.M 10 in this case . Those candidates under Ex.M.10 were found suitable for appointment as messengers and sweepers . Even MW1 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.M , M3 and M4 respectively. But, when MW1 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 to MW1 wait list under Ex.M10 was prepared on 2-5-92 but 5337 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

case. The Petitioners have completed the service of 240 days and more in a continuðus period of 12 calendar months as enshrined under Sections 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 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 inthe connected I.Ds. have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II 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 onlywhen the workmen worked with hammer , sickle or pen butmust 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 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 . 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 are in age group of 40 to 50 years and for no fault 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 by 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 accepted the settlements drawn under the provisions of Sections 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 bona fide 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 as he clause 2 ( 00) of the I.D. 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 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 that " to 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 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 later 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 , 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 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 to 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 the averment of MW1 . Therefore , the termination ofthe 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 settlement on absorption of temporary employees . Though the Resporident/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 Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 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/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. Μ1 το Μ5 . 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 period and hence evidence ofRespondent/Bank has no application to the Petitioner's [PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

5338

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 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 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the freewill 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 or that it has been arrived at on account of fraud, inisrepresentation 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 forthe 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 , 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 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 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 contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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/Bank and the federation were bona fide which were the only workable solution and isbinding 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 questioned by any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on therulings reported in 1991 ILLJ 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 claim of 11 workmen 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 conciliation is vitiated by fraud , misrepresentation of coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 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 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 . " Itfurther 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 rulings 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 conciliation proceedings under section 18 ( 1 ) of the I.D. Actand ( 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 second category made with a recognised majority union has extended application as it willbe binding on all workmen of the establishment. Even

भारत का राजपत्र : अगस्त 11, 2007/श्रावण 20 , 1929

5339 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 of refusingto 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 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 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 order under reference in a technical Inanner 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 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 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 decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrench nent 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 soine 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? But , I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

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 select list on reduction in number 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 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 19976 SCC 584 SYNDICATEBANK & ORS . Vs. SHANKAR PAULAND 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 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 oftheir names in the said panel for permanent absorption in the services of the bank . Whatever conditional right theyhad 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 Supreine 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 thewait 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 ofthe 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 . 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 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 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 entered by a back door [PART II-SEC . 3 (ii ) ) 5340

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

only 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 ) 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 mandatory but only directory, onsufficient 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 Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. Insuch 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 costs .

15. Learned Senior Advocate further argued that even in recent 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 , 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 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 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 . 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 ofpublic 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 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 , inCDJ 2006 SC 443 NATIONAL FERTILIZERS LTD . AND (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 upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation ofan 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 oneunit 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 . 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 IISCMC 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 sanctionedposts . "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 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 confirmation . The so called exercise of confirming theseemployees , 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 vacarnicy and they have only appointed in leave vacancies andtherefore , they are not entitled to claim any absorption inthe Respondent/Bank . Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & QRS 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 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

4 5341 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग 11 खण्ड 3 (ii) ]

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 cannot 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 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 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 Clovt, 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.

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 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 . 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 of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION V.S. 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 Govt , 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 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. corrected and pronounced by me in the open court on this daythe 31st January. 2007. )

K. JAYARAMAN , Presiding Officer

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 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 . Under such circumstances , it cannot be questioned by the Petitioner.

WW1 Sri M.P. Sugumar WW2 Sri V. S. Ekambaram

For the Respondent MWI Sri C. Mariappan MW2 Sri C. Ramalingam

Documents Marked: -

Description

Ex. No. Date

W1 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-04-88 Xerox copy of the administrative guidelines Issued by Respondent/Bank for implementation ofEx .MI 17. I find much force in the contention of the learned 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 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 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

3287 GI /07-28 5342

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

W3 24-4-91 Хегохx copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisment in The Hindu ondaily Wages based on Ex.W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending Period of qualifying serviceto daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai About filling up of vacancies of messenger posts.

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

Xerox copy of the instruction in Reference book on staff about casuals hot to be engaged at office /branches to domessengerial work.

W9 25-08-88 Xerox copy of the service certificate Issued by Karumbur Branch .

W10 Nil Xerox copy of the service certificate ssued by Karumbur Branch .

W11 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre& service conditions .

W12 Nil Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95.

W13 06-03-97 Xerox copy ofthe call letter from Madurai ZonalOffice for interview of messenger post-V. Muralikannan.

W14 06-03-97 Xerox copy of the call letter from Madurai ZonalOffice for interview of messenger post-K. Subburaj .

W15 06-03-97 Xerox copy ofthe call letter from Madurai ZonalOffice for interview of messenger post-J. Velmurugan .

W16 17-03-97 Xerox copy of the service particulars--- Velmurugan

W17 26-03-97 Xerox copy of the letter advising selection of part time Menial- G. Pandi .

[PART II-SEC . 3 ( ii) ] W18 31-03-97 Xerox copy of the appointment Orderto Sri G. Pandi .

W19 Feb 2005 Xerox copy of the Pay Slip of T. Sekar forthe month of February , 2005 wait list No. 395 of Madurai Circle .

W20 13-02-95 Xerox copy of the Madurai Module Circularletter about Engaging temporary employees from the panel of wait list .

W21 09-11-92 Xerox copy of the Circular No. 28 Regarding Norms for sanction of messenger staff .

W22 09-07-92 Xerox copy of the minutes of the Bipartite meetting.

W23 09-07-92 Xerox copy of the Settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of parttime general Attendants .

W24 07-02-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

W25 31-12-85 Xerox copy of the Local Head Office circular about appointment of temporary employees in subordinate cadre .

For the Respondent/Management : --

Ex . No. Date

Description

MP 17-11-87 Xerox copy of the settlement.

M2 16-07-88 Xerox copy of the settlement .

M3 27-10-88 Xerox copy of the settlement .

M4 09-01-91 Xerox copy of the settlement .

M5 30-07-96 Хегоx copy of the settlement .

M6 09-06-95 Xerox copy of the minutes of.conciliation proceedings .

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91 .

M8 15-05-98 Xerox copy of the order in O. P. No. 2787/97 of High Court of Orissa.

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list of Chennai Module.

25-10-99

M11

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

5343 भारत का राजपत्र अगस्त 11 , 2007 / श्रावण 20, 1929

[ भाग II- खंड 3 ( ii ) ]

AWARD

नई दिल्ली, 20 जुलाई, 2007

का. आ. 2267.- औद्योगिक विवाद अधिनियम, 1947 (1947. का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 224/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

The Central Government, Ministry of Labour vide Order No. L- 12012/410/98 - IR(B- I) dated 10-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 123/99 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 I. D. No. 224/2004.

[सं. एल-12012/410/1998- आई आर ( बी-I ) ] अजय कुमार , डेस्क अधिकारी

NewDelhi, the 20th July, 2007

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri D. Varadarajan , wait list No. 479 for restoring the 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 workman is entitled ? " S. O. 2267.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 224/ 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 , which was received by the Central Government on 20-7-2007.

3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

[No. L- 12012/410/1998 - IR (B-I)] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman , Presiding Officer Industrial Dispute No. 224/2004

(Principal Labour Court CGID No. 123/99)

[ 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 theManagement of State Bank of India and their workmen]

BETWEEN

Sri D. Varadarajan

: I Party/Petitioner

AND

The Assistant General : II Party/Management

Manager,

State Bank of India , Z. O. Chennai

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre inState Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis as Guindy branch from 2-1-1986 . 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 settlement under Section 18 ( 1 ) reached betweenmanagement 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 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, В and C. Though the classification was unreasonable , theRespondent/Bank broughtto 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 Guindy 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 tojoin at the branch where he initially worked as a class IV employee . From 2-1-1986, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Guindy branch, : M/s . K. S. Sundar , Advocates

For the Management [PART SC Jun) ] 5344

THE GAZETTE OF INDIA: AUGUST 11. 2007/ SRAVANA 20, 1929

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 ofthe branch informed the Petitionor 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 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 inade 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 31-3-97 and to regulutise hiin in service in thue course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated us of no consequence, since accordingto the Respondent/ Bank, it engaged the Petittoner only in temporary services after the settlement. The Petitiorior was not aware of settlement by which his services and number of days worker! by bun after interview do not merit consideratioit . 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 25G and 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 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 violution of relevant provisions of sircular . The Respondent/ Bank engaged the Petitioner and extracted the some work either by payment of petty cash or by directling him to work under assumed name or by both which amounts to unfair labour practice. The wait list sulfors serious infirmities and it is not based on strict sonmorny and without any rationale . Hence, for all these reasons the Petitioner prays to grant rellef of regular employment in Respondent/Bank with all attendant benefits .

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 performance of duties as thessenger and such engagements worr prevailing from the year 1970 onwards. Such of those omployees who are claiming permanent absorption and when their case was espottsed by State Bank of India Stall 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 settlementsbecante subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) efi D. Act. Interms thereof, the Petitioner was considetod for permanent appointment as per his eligibility along with shmilarly placed other temporary employees and the Petitioner was wait listed as candidate No. 479 in waitlist of Zonal Office, Chennai . So far 357 walt listed temporary candidates, out of 744 waitlisted temporary employees writ permanently appointed by Respondent/Bank. It is false to nilege that the Potitioner worked as a temporary messenger The Petitioner was engaged only in leave vacancies as and when it arose. When the Petitioner having submitted to sclection process in terms of settlements drawn as per retrenchment provisions referred to above , count iuta around and claim appointinent . Such of those temporary employees who were appointed were engaged for mole number of days and hence , they were appointed. Under the settlement , employees were categories as A, Ba Considering their temporary service and subject to other cligibility criteria , under category ( A) the iemровагу employees who were engaged for 240 days were to be considered and under category ( 8 ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 16 calendar meanths and under category ( C ) the temporary emplovers whohave completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 10 days agetogate temporary service in any continuans block of36 Galundar 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 then wait list was to lapse in Decentber, 1991 and the cut off date was extendedupto 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 Respondem ind implemented the voluntary retirement scheme and even the permanent vacancies stand substantiaily reduced There wore no regular vacancies available: The peculiar problem was due to the facts Uunt all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 744 wait listed candidates , 357 temporan employees wete appointed and since the Petitioner w wat listed at 479 he was not appointed . The said settlemcars were bona fide whteh were the only workable solution and in binding on the Petitioner . The Petitioner is extoppe i from questioning the settlements directly or indirectly and hls claim is liable to be rejected. Further, the said settlemetils were not questioned by any union so far and the settlements 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for arljudiention by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence, the question of regular appointment/absorption does not irise . The engagement of Petitioner was not anthorised . 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 in lieu ofprovisions of law, retrenchment and implementedby Respondent/Bank.

5345

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाণ 11 खंड 3 ( ii ) ]

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 to entertain such plea. It is not correctto 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 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 ofdaily 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 cos18.

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 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 false toallege that the settlements are contraryto 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. 479 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 ? " PointNo. 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 by Employment Exchange and they having been called for Interview andhaving been selected and wait listed in ternts of the 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 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 protset 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 Court at the time of final tearing 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 retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC . 3 (ii) ] appointment as Section 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank ofIndia Vs. S. Satyam and Others the Supreme Court has held that Chapter V-A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 workmen. 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 onbehalf 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 of the settlements on absorption and which are statutory in character. Further , a combined study of Ex. M1 and the averments ofMW1 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. M1 deals with categorization of retrenched temporary employees into A, B and C' , but this categorization of 'A, B and 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 1( a ) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers, 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 on Staff matters , copyofwhich 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/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 amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have tobe prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW1 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. M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe 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 MW1 wait list under Ex. M10 was prepared on 2-5-92 but there is no pleading in the Counter 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, 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 asperBipartite Settlement while the 1988 settlement dealt withdailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly 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 treat one class and their action undoubtedly amounts to violation of Article 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 attemptto wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combining equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after duc 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 violative of Articles 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex. M10 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 projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published even after the Court order in WMPNo. 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 inThe 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. Froin all these things, it is clear that Ex. M10 hasbeen prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all , Ex. Ml was not produced at 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 isfurther 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 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 :

[ भाग II-खंड 3 (ii) ]

5347 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

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/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 inthe connected I. Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express Intemational 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 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 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. 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 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.

work in the Respondent/Bank is continuous and though thePetitioner has performed the duties continuouslywhich isstill 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 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to 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 workmen is illegal ." Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle ofseniority in the legal sense , since the selected candidates with longest service should have priority over those whojoined the service later 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 , 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 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 to 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 the averment of MW1 . 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 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 ) settlernent as claimed by the Respondent/Bank which says only with regard to modification of Exts . MI to M4 made in terms of Ex. M6 . Though the Respondent/Bank produced Exts . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and 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 marked as Exts . Ml 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 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 continuous period of 12 calendar months as enshrined under sections 25B and 25F of the Industrial

5348

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 mustbe fair and reasonable." Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not partiesto 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, he argned 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 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 withwait 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. 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 behalf of the Petitioner it iscontended 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 matter of tenability of a reference. Even though the Tribunal cannot gobeyond the order ofreference , 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 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 nilings 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 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 entered into by the Respondent/Bank and the federation were bona fide which were the only workable solution and is binding on the Petitianer. The Petitioner accepted the settlernent and accordingly he was waitlisted and therefore , the Petitioner is estopped frem 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 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 claim of 11, workuten 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 heid 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 . " Learned counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 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 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 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 rulings reported in 1997 [ LLJ 308 K.C.P. Ltd. Vs. Presiding Officer and Otliers wherein the Supreme Court has held that " settlement are divided into two categories natnely ( 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 second category made with a recognised majority union has extended application as it will be lrinding 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 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 workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 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 tothere beng goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been 5349 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 ( ii ) ]

that the Labour Court should not attempt to consider the orderunder reference in a technical manner or a pedantic manner, but should consider the order of reference in afair 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 consider all incidental matters also and the order of reference should not be construed in the manner which wouldprolong 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 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 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 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 ? 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 settlement.

oftheir 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 the Respondents 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. 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 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 toquestion the wait list and since there is no mala fide onthe part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation ofwait 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. Vs.Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those adhoc 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 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 enteredby 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 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 an ad hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumptionmay 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 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 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 . It cannot be a mechanical act but a judicious one . From this , the impugned 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 SCC 139 Union of India and Others Vs. K. V. Vijeesh 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 ofcompetitive examination acquires a right ofappointment in Govt. service in an existing or a future vacancy. In that case , pruning of select list on reduction in number ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number 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 iin 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar 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

3287 G1/07--29 5350

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II-SEC. 3(ii) ] 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 II 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 entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularlyappointed candidate would arise , if the candidate concerned is appointed in an 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 purported regularisation or confirmation is given, it would beanexercise 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 mullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only dueto exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies andtherefore they are not entitled to claim any absorption inthe 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 daily wages . Under these circumstances , 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 dailywage 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 ) 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 mandatory but only directory, onsufficient 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 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 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 costs .

15. Learned Senior Advocate further argued that

evenin recent decision reported in 2006 4 SCC 1 Secretary, State ofKarnataka Vs. Uma Devi , the Supreme Court has heldthat "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 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 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 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 . 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 ofpublic 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 atemporary 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. " Further, in CDJ 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 an employee upon the expiry of purported period ofprobation 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. 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 Articles 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 employee had worked for more than 240 days ofservice by that itself would not confer any legal right uponhim tobe 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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II-खंड 3(ii ) ]

settled legal position , as noticed hereinbefore. "

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. Under such circumstances , it cannot be questioned by the Petitioner.

5351

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, corrected and pronounced by me , in the open court on this day the 31st January, 2007. )

K. JAYARAMAN, Presiding Officer

Witnesses Examined :

Forthe Petitioner : WW1 Sri D. Varadarajan WW2 Sri V.S. Ekambaram

For the Respondent : W1 Sri C. Mariappan MW2 Sri C. Ramalingam

Documents Marked:

Ex. No. Date

Description

W1 01-08-88

18. Further, the representative for the Petitioner contended that in a similar case, 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 same relief.

Xerox copy of the paper publication in daily Thanthi based on Ex .M1 .

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex.M1.

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on dailywages based on Ex . W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messengers posts .

W7 25-02-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work .

W9 16-06-86 Xerox copy of the service certificate issued by Guindy Branch.

5352

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC . 3( ii )] Ex. No. Date

Ex. No. Date

Description

W10 21-08-91

W29 07-02-06

Xerox copy of the service certificate issued byGuindy Branch.

W11 3-11-92

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 Guindy Branch .

W30 31-12-85

W12 6-12-93 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 .

W13 16-3-95

For the Respondent/Management:

Xerox copy of the service certificate issued by Guindy Branch.

Ex. No. Date

Description

W14 18-3-96

Xerox copy of the service certificate issued byGuindy Branch.

17-11-87 Хегох copy of the settlement .

W15 30-11-96

16-07-88 Xerox copy of the settlement.

Xerox copy of the service certificate issued by Guindy Branch.

M3 27-10-88 Xerox copy of the settlement.

W16 Nil

M4 09-01-91 Xerox copy of the settlement .

M5 30-07-96 Хегох copy of the settlement.

M6 09-06-95

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care and service conditions.

Xerox copy ofthe minutes of conciliation proceedings .

W17 Nil

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91 .

Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

M8 15-05-98

W18 06-03-97

Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa .

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 ,

W19 06-03-97

M10 Nil

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K . Subburaj .

Xerox copy of the wait list of Chennai Module.

W20 06-03-97

M11 25-10-99

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan.

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99.

W21 17-03-97

नई दिल्ली, 20 जुलाई, 2007

Xerox copy ofthe service particulars-- J.Velmurugan.

W22 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W23 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

Feb. 2005

W24

का. आ. 2268.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार चीफ पोस्ट मास्टर, डाक विभाग के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में औद्योगिक अधिकरण, पटना के पंचाट को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

Xerox copy of the pay slip of T. Sekar for the month ofFebruary, 2005 wait list No. 395 ofMadurai Circle .

W25 13-02-95

[सं. एल-40012/136/2004- आई आर (डी. यू. ) ] सुरेन्द्र सिंह, डेस्क अधिकारी Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

New Delhi , the 20th July, 2007 W26 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W27 09-07-92 Xerox copy ofthe minutes of the Bipartite meeting.

W28 09-07-92

S. O. 2268. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award of the Industrial Tribunal, Patna as shown in the Annexure , in the Industrial Dispute between the employers in relation to the management of Chief Post Maser/D/ O Post and their workmen, which was received by the Central Government on20-7-2007 .

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 .

[No. L -40012/136/2004- IR (DU) ] SURENDRA SINGH , Desk Officer 5353 [भाग II- खंड 3 (ii) ]

भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20 , 1929

ANNEXURE

BEFORE THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, SHRAM BHAWAN, BAILEY ROAD , PATNA

Reference No. 21 of2005

No. 4 (C) of 2005

Between the management of the Chief Post Master, General PostOffice , Patna, Bihar and their workman Shri Shashi Bhushan, C/o Shri Yogendra Singh , Dr. Fani Bhushan Lane, Anishabad , Patna .

For theManagement : Sri Gopal Mishra, P. A. Court Case, Patna, G. P. O. , Patna

For the Workman :Shri B. Prasad, Joint Convener, Coordination of Unions &

Associations, Patna

PRESENT

Vasudeo Ram, Presiding Officer, Industrial Tribunal , Patna,

AWARD

management of G. P. O. , Patna on 3-2-2001 to discharge the dutiesof aPeon. After his appointment he performed the duties of a Peon such as ( 1) sorting of return vouchers , (2) sorting ofvouchers for posting, (3 ) putting date stamp on postal stamps , (4) putting stamp on postal orders , (5) sweeping, carrying postal bags , serving water, tea to the staff etc.He worked from 10 A. M. to 5 P. M. sometimes even beyond that for which extra payment was made . Initially he used to be paid @ Rs . 30 per day which was subsequently enhanced to Rs. 40 per day and lastly @Rs .60 per day. He was paid his wages through vouchers, generally on weekly basis . Further, the case of the workman is that he served the management continuously for more than 240 days each year when his services was abruptly terminated by the management on 30-4-2004 . He was not given any notice , notice pay or retrenchment compensation prior to termination of his services as required under Section 25F of the Act and thus the management resorted to unfair labour practice as per schedule V of the Act . According to the workman the action of the management in not regularising his services as a Peon and terminating his services is illegal and unjustified . The workman claims that he be reinstated with full back wages and his services be regularised as a Peon besides any other relief deemed fit.

Patna , dated the 11th July, 2007

By adjudication order No. L-40012/136/2004 -IR(DU) dated the 28th January, 2005 the Government of India , Ministry of Labour, New Delhi under clause (d) of sub- section ( 1 ) and sub -section (2A) of Section 10 of the Industrial Disputes Act , 1947 (hereinafter called ' the Act' for brevity) referred the following dispute between the management ofthe Chief Post Master, General Post Office, (hereinafter called the GPO for brevity) , Patna and their workman Shri Shashi Bhushan, C/ o Shri Yogendra Singh, Dr. Fani Bhushan Lane , Anishabad , Patna to Central Govt . Industrial Tribunal -cum - Labour Court , Dhanbad No. 2 for adjudication on the following:

3.. The contention of the management is that Shri Shashi Bhushan was not appointed against any vacant post. He was not given any appointment letter. The work from him was taken on purely temporary basis on part time dailywages whenever the necessity arose and he was paid according to the rate for daily wagers fixed by the Government . The workman was paid on hand receipts for the days he worked . The workman had not put in 'continuous service ' as defined under Section 25B of the Act. According to the management Shri Shashi Bhushan does not come under the definition of ' workman ' as defined under Section 2 (S) of the Act . Further, according to the management since Shri Shashi Bhushan was not appointed by the management , the question of termination of his service did not arise . According to the management Shri Shashi Bhushan is not entitled to any relief claimed.

4. Upon the pleadings of the parties and also the terms of reference the following points arise out for decisions :-

"Whether the action of the management of Chief PostMaster , GPO, Patna in terminating the services of workman Shri Shashi Bhushan instead of regularising him on completing 240 days of continuous service in each calendar year for more than four years in the Main G.P.O. , O/ o the Chief Post Master, Patna , Bihar is legal and justified ? If not to what relief the workman is entitled to ? "

(i) Whether the action of the management of Chief PostMaster , G. P. O. , Patna in terminating the services of workman Shri Shashi Bhushan instead of regularising him on completing 240 days of continuous service in each calendar year for more than four years in the Main G. P. O. Office ofthe Chief Post Master, Bihar is legal and justified ?

(ii) To what relief or reliefs , if any, the workman is entitled ?

FINDINGS :

Subsequently vide adjudication order No. L-40012/ 136/2004- IR(DU) dated the 4th March, 2005 the Government of India, Ministry of Labour, New Delhi in exercise ofpower conferred by Section 7A read with sub - section ( 1 ) of Section 33B of the Industrial Disputes, Act, 1947 withdrew the proceeding from Central Govt. Industrial Tribunal - cum- Labour Court , Dhanbad No. 2 and transferred the same to this Tribunal to dispose of the same in accordance with the law.

Point No. (i) :

2. The parties have filed the statement of claim and the written statement . The case of the workman is that he ( Shri Shashi Bhushan) was orally appointed by the

5. Both the parties have adduced oral as well as documentary evidence in support of their respective 5354

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20 , 1929

contentions. The management has examined altogether five witnesses namely Shri Awadhesh Kumar Singh, Asstt . Post Master, Patna G. P.O. (M. W. 1 ) , Shri Shibnath Prasad, Assistant in Patna G. P. O. (M. W. 2) , Shri Basant Singh, retired Dy. Post Master, Mail and Treasury, Patna G. P. O. (M. W. 3 ) , Md . Safrul Hassan, Assistant Post Master Patna G.P. O. (M. W. 4) and Ali Abbas , Manager, Postal Stores Depot , Patna (M. W. 5) . Shashi Bhushan , the workman alone has deposed for himself. The management has got exhibited the photo copy of as many as 58 vouchers (Ext . M, M/2 to M/6) , signature of Basant Singh (M. W. 3 ) on vouchers ( Ext . M/ 9 and M/ 10 ), notings of Shibnath Prasad (M. W. 2) on error book (Exts . M/7 and M/8 ) , notings ofAli Abbas (M. W. 5 ) on error book (Ext . M/ 13 ) , initial of Basant Singh, (M. W. 3 ) on error book (Ext. M/ 11 ) and the signature ofMd . Safirul Hasan (M. W. 4) on pay order (Ext. M/ 12). The management through the statement of its witnesses and the documents noted above has tried to prove that there was no vacancy of IV Grade under the management ofG. P.O. , Patna , Neither any name was called for to make appointment nor Shashi Bhushan was given any appointment letter by the management . Further the management has tried to impress upon that the order is taken on Error Book whenever the necessity to engage a Coolic arose, the Coolie was engaged thereon and after the work he was paid on vouchers (Form ACG - 17) . The vouchers are not the proof of appointment nor the same are pay bill through which the regular employees under the management are paid their wages. The aforesaid vouchers are issued by the management for casual expenses such as purchasing something from market , making payment to Coolies, Painter, Thelawala, Rickshaw Puller and such other persons .

6. Theworkman Shri Shashi Bhushan has filed a list ofthe days he worked under the management prepared by himself (Ext . W) , photo copy of order book from 8-5-2002 to 31-8-2003 (Ext . W/ 1 ) , photo copy of vouchers 67 pages (Ext . W/ 2) to ( W/2-66 ) . The said vouchers also include the 58 vouchers (Exts .M M/2 to M/6) filed by the management . Theworkman through the said documents wanted to show that he worked as daily rated casual labour and he was paid@Rs . 30 per day, lateron @ Rs . 40 per day and lastely @Rs. 60 per day and in that way he served the management of Chief Post Master, G. P. O. , Patna for more than 240days for several years . Besides that the workman has filed the photocopy of his matriculation certificate , School Leaving Certificate and the mark sheet (Ext . W/3 ) to show that he has the requisite qualification also to be appointed on the post ofGrade IV.

7. From the terms of reference it is clear that the point as to whether the workman has worked under the management of the Chief Post Master , G. P. O. , Patna continuously for 240 days in a calendar year is not in controversy rather in the terms of reference it is an admitted fact that the workman has worked under the management ofChief Post Master G. P. O. , Patna continuously for 240 days in a calendar year for several calendar years . There can be no dispute on the point that this Tribunal has to adjudicate as per the terms of reference and can not go

[PART II- SEC. 3 (ii) ] beyond it. In the decision reported in 1979-Lab . I. C.- 827 ( Supreme Court) it has been held:

"The jurisdiction of Tribunal in industrial dispute is limited to the points specifically referred for adjudication and to matters incidental thereto and the Tribunal cannot go beyond the terms of reference . Where the very terms of reference showed that the point in dispute between the parties was not the fact of closure of its business by the employers and the reference were limited to the narrow question as to whether the closure was proper and justified, the Tribunal by the very terms of the reference had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was. infact closed down by the management . "

The terms of reference in this case shows that the point for adjudication is that on completing 240 days of continuous service in each calendar year for more than four years in the main G. P. O. , Office of the Chief Post Master , Patna whether the action of the Chief Post Master, G. P. O. , Patna in terminating the services of workman Shri Shashi Bhushan instead of regularising him is legal and justified ? Under the circumstances I find that this Tribunal is not required to adjudicate as to whether the workman has worked under the management of the Chief PostMaster ,G. P. O. , Patna for 240 days continuously in a calendar year for several years or not , this Tribunal is required to adjudicate as to whether the action of the Chief PostMasterG. P. O. , Patna in terminating the services of Shri Shashi Bhushan instead of regularising him is legal and justified or not . Under the circumstances I need not discuss the evidence adduced on behalf of the parties on the point whether the workman worked under the management continuously for 240 days in a calendar year ornot.

8. Section 2 (S ) of the Act defined ' workman ' as follows:

'Workman' means any person ( including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical , operational , clerical or supervisory work for hire or reward, whether the terms of employment be express or implied and for the purpose of any proceeding under theAct in relation to an industrial dispute , includes any such person who has been dismissed, discharged or retrenched in connection with , or as a consequence or, that dispute or whose dismissal , discharge or retrenchment has led to that dispute , but does not include any such person :---

(i) who is subject to the Air Force Act , 1950 ( 45 of 1950) , or the Army Act, 1950- (46 of 1950 ) , or the Navy Act, 1957 ( 62 of 1957 ) ; or

(ii) who is employed in the Police Service or as an Officer or other employee of a prison ; or ( iii) who is employed mainly in a managerial or administrative capacity; or 5355

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II-खंड 3 (ii ) ]

(b) the workman has been paid , at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months ; and (iv) who , being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him , functions mainly of a managerial nature" .

Looking into the said definition there remains no doubt that Shri Shashi Bhushan is a workman . He has workedunder the management 240 days continuously in a calendar year for several calendar years . It is immaterial that there was no vacancy under the management, he was not given any appointment letter and he was paid wages through vouchers and not through paybill . The contention ofthe workman is that his services was abruptly terminated on 30-4-2004 without any notice , notice pay or compensation . The workman (M. W. 1 ) in his statement before this Tribunal has supported the same. Section 2 (00) of the Act has defined retrenchment as follows:

In the instant case the workman Shri Shashi Bhushan has been retrenched by the management of the Chief Post Master , G. P. O. , Patna without making compliance ofthe provisions laiddown under Section 25F of the Act ; meaning thereby the workman was neither given any notice one month prior to his retrenchment nor notice pay or compensation was paid to him . Under the circumstances I find that the action ofthe management of Chief Post Master, G.P. O. , Patna in terminating the services of workman Shri Shashi Bhushan instead ofregularising him on completing 240 days of continuous service in each calendar year for more than four years in the main G. P. O. Office of the Chief PostMaster, Patna, Bihar is neither legal nor justified. This point is decided accordingly.

"retrenchment " means the termination by the employer of the service ofa workman for any reason whatsoever, otherwise than as a punishment inflicted by way ofdisciplinary action, but does not include:

PointNo. (ii):

(a) voluntary retirement of a workman , or

(b) retirement of the workman on reaching the age ofsuperannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

10. The decision in the case of Dhampur Sugar Mills Ltd. Vs. Bhola Singh reported in AIR- 2005- Supreme Court- 1970 has been cited and it has been argued on behalf of the management that completion of 240 days service in a calendar year in itself is not a ground for directing regularisation particularly in a case when the workman has not been appointed in accordance with the extant rules . Para 18 of the decision speaks as follows:

(bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned as its expiry or of such contract being terminated under a stipulation on that behalf contained therein; or

"When a workman is appointed in terms of a Scheme on daily wages , he does not derive any legal right to beregularised. It is now well known that completion of240 days of continuous service in a year may not by itself be a ground for directing regularisation particularly in a case when the workman had not beenappointed in accordance with the extant rules . " The facts of this case shows that after taking 'continuous service ' as defined under sub -clause (II ) of clause (a) of Sub- section (2) of Section 25F of the Act i.e. after taking 240 days work in a calendar year for several years the services of the workman has been terminated without any reason and thus it is a clear case of retrenchment.

In the said case the workman was appointed under the Scheme, the workman had worked as a trainee/ apprentice under a Scheme sponsored by the State Government for training the cane growers . Under the circumstances I find that the case cited on behalf of the management differs from the present case and the decision reported in AIR-2005-Supreme Court- 1970 does not apply in this case.

9. Section 25F of the Act speaks as follows:

"Condition precedent to retrenchment of workman No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by the employeruntil:

11. From the evidence on record it transpires that Shri Shashi Bhushan (W. W. 1) has contended and has stated in his statement before this Tribunal that he did the workswhich a regular IV Grade employee of the G. P. O. did and the same has not been falsified by the management . The management has neither contended nor proved that the office ofChiefPost Master , G. P. O. , Patna is a temporary office . It is apermanent office and it is likely to continue for indefinite period. The workman has worked under the management of Chief Post Master, G. P. O. , Patna for 240 dayscontinuously in one calendar year for several years .

(a) the workman has been given one month's notice inwriting indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

5356

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

The workman has been illegally retrenched. Under the circumstances I find that workman deserves to be reinstated onthe post of peon under the management of Chief Post Master , G. P. O. , Patna. I may mention that the management has not taken any work from the workman after 30-4-2004 and the workman had worked upto that date as a peon which is not a skilled or specialised work so that the workman might not have got any engagement after 30-4-2004 . Under the circumstances I am not inclined to allowback wages . This point is decided accordingly.

12. In the result I find and hold that the action of the management of Chief Post Master, G. P. O. , Patna in terminating the services of workman Shri Shashi Bhushan instead of regularising him on completing 240 days of continuous service in each calendar year for more than four years in the main G. P. O. Office of the Chief Post Master, Patna , Bibar is neither legal nor justified. The workman Shri Shashi Bhushan deserves to be reinstated onthe post ofa peon under the management of ChiefPost Master, G. P. O. , Ratna. The management is directed to reinstate the workman within two months from the date of publication of award.

13.And this is my Award.

VASUDEO RAM , Presiding Officer नईदिल्ली, 20 जुलाई , 2007

का. आ. 2269-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 198/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था । [सं. एल-12012/355/1998- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 20th July, 2007

S. O. 2269. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 198/ 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, which was received by the Central Government on 20-7-2007.

[No. L- 12012/355/ 1998 - IR(B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

CHENNAI

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman , Presiding Officer

[PART II-SEC. 3(ii) ] Industrial Dispute No. 198/2004

(Principal Labour Court CGID No. 21/99)

[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 theManagement of State Bank of India and their workmen] BETWEEN

Sri R. Kumar

: I Party/Petitioner

AND

The Assistant General : II Party/Management Manager,

State Bank of India, Z. O. ,

Chennai

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram,

Authorised Representative FortheManagement : M/s . K. S. Sunder , Advocates

AWARD

TheCentral Government, Ministry of Labour vide Order No. L - 12012 /355 /98 -IR(B - I ) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 21/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe 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. 198/2004 .

2. The Schedule mentioned in that order is as follows:---

"Whether the demand of the workman Shri R. Kumar, wait list No. 385 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 Claim Statement are briefly as follows :-

[भाग II- खंड 3(ii) ]

thetemporaryworkmen which amounts to violation ofrelevantprovisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing himtowork under assumed name or by both which amourits tounfair 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.

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 questionofregular 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 Section18(1 ) and 18(3 ) of I. D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank. The claim ofthe Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that hewas wait listed as per his length ofengagement 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 permanent absorption and when their case was espousedby 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 settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) of I.D. Act. In terms thereof, the Petitioner was considered forpermanent appointment as per his eligibility alongwith similarly placed other temporary employees and the Petitionerwas wait listed as candidate No. 385 in wait list ofZonal Office, Chennai . So far 357 wait listed temporary candidates, out of744 wait listed temporary employees were permanentlyappointed byby Respondent/Bank. It is falseto allegethat 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 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 (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 completed 30 days aggregate temporary service inany calendar year after 1-7-75 or minimum 70 days betweenmanagement of State Bank of India andAll India State Bank of India Staff Federation and the settlement is with regard to absorption ofClass 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager ofthePonneri branch. He was called for an interview by a Committee 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 17-9-1982, the Petitioner has beenworking as a temporary messenger and some times performing work in other branches also .While working on temporary basis in Ponneri branch, another advertisement by the Respondent/Bankwas made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager ofthe 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 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.to reconsider the reference and the Petitioner requested the Respondent/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/Bank took up an unreasonable stand that the service and the number of days workedby 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 bywhich 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 ' : action in not absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to Section 25G and 25H ofthe 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 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

3287 G1/07-30 5358

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC. 3(ii) ]

listedworkman with ulterior motive. The Respondent/Bank has beenarbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and faricies.Hence, the Petitioner prays that an award may bepassed 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 ofIndia 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 ofclass 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 inW. P. No. 7872 of1991 , the Petitioner questioned thesettlement 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 bepassed inhis favour.

7. In these circumstances , the points for my consideration are :-

1 "Whether the demand of the Petitioner in Wait List No. 385 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 Nos. 1 & 2 :

8.When the matter was taken up for hearing, it is reportedby the representative of the Petitioner that he is notappearing for the Petitioner and the Petitioner also has not appeared before this Court for further proceedings and hence, the Petitioner was called absent and set ex parte.

aggregatetemporary 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 date was extended upto31-3-97 for fillingup vacancies which were to arise upto 31-12-94 . 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 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 aforesaid settlements, out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 385 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 fromquestioningthe settlements directly or indirectly and hisclaim is liableto be rejected. Further, the said settlements werenot 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 thịs Tribunal has no jurisdiction to entertain such plea. It is not correct to saythat 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 31-12-94were filled up against the waited list oftemporary 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 ofChennai wait list ofdaily wages was not finalized andhence not published and there is only one wait list for the appointment of temporary employees.After thethe expiryexpiry of wait !wait 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 by Respondent/Bank during 1982 and worked asa temporary messenger and during the year 1986-87he was disengaged from service and again he was engaged as atemporary messenger and all of a sudden, on 31-3-97 he was terminated 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 I. D. 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 llegations of the Petitioner are not established before this Tribunal . 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.

(Dictated to the P. A. , transcribed and typed by him, correctedand pronounced by me in the open court on this daythe31st January, 2007) .

K. JAYARAMAN, Presiding Officer 5359 भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929

[ भाग II- खंड 3 (ii) ]

AWARD

नई दिल्ली, 20 जुलाई, 2007

का. आ. 2270.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या68/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

The Central Government, Ministry ofLabour vide Order No. L- 12012/368/ 98 - IR(B -I) dated 5-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 90/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution ofthis 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. 68/2004.

[सं. एल -12012/368/1998- आई आर (बी-1 ) ] अजय कुमार, डेस्क अधिकारी

2. The Schedule mentioned in that order is as follows:-

New Delhi , the 20th July, 2007

"Whether the demand of the workman Shri K. Manthirasoodamani, wait list No. 381 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 ? "

S. O. 2270.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 68/2004) ofthe 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, which was received by the Central Government on 20-7-2007.

3. The allegations of the Petitioner in the Claim Statement are briefly as follows:-

[No. L- 12012/368/ 1998 -IR (B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K.Jayaraman, Presiding Officer

Industrial Dispute No. 68/2004

(Principal Labour Court CGID No. 90/99)

[In the matter of the dispute for adjudication under clause (d) ofSub -section ( 1 ) and Sub -section 2(A) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947), between theManagement of State Bank of India and their workmen]

BETWEEN

Sri K. Manthirasoodamani : I Party/Petitioner

AND

The Assistant General :II Party/Management

Manager, State Bank of India, Z. O. , Madurai

APPEARANCE

Forthe Petitioner :Sri V. S. Ekambaram, Authorised Representative

The Petitioner was sponsored by Employment Exchange for the post of sub -staff in Class IV cadre inStateBank of India and he was given appointment. as messenger after an interview and medical examination . He was appointed on temporary basis as at Sattur branch from 27-5-1983 . The Petitioner was orally informed that his services were no more required. The non -employment ofthe Petitioner and othersbecame 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 settlement under Section 18 ( 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 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, В 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 format through Branch Manager of the Sattur branch. He was called for an interview by a Committee appointedby Respondent/ Bank in this regard. But, they have not informed the result of interview and also with regardto appointment .But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee. From 27-5-1983 , the Petitioner has beenworking as a temporary messenger and some- times performing work in other branches also. While For the Management : Mr. D. Mukundan, Advocate 5360

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929 [PART II SEC. 3 (ii) ] working on temporary basis in Sattur 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 31-3-97 that his services are not required any more and he need not attendthe office from 1-4-97. Hence, the Petitioner raiseda disputewith 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 Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 andto regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days workedby 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 ofsettlement by which his services and number of days worked byhim 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 repugnantito Sections 25G and 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 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 temporaryworkmen which amounts to violation ofrelevam provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment ofpetty cash or by directing him toworkunder 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 .

law, retrenchment and implemented by Respondent/Bank . The claim ofthe Petitioner is not bona fide and made with ulterior motive , The Petitioner concealed the material facts thathewas 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 claiming permanent absorption and when their case was espousedby State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-7-88 , 7-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3) of I.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. 381 in wait list ofZonal Office, Madurai . So far 219 wait listed temporary candidates, out of 492 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 retrenchment provisions referred to above , cannot turn around and claim appointment . Such ofthose temporary employees who were appointed were engaged formore 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 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 whohave 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 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 filling up vacancies which were to arise upto 31-12-94. 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 problemwas due tothe facts that all the aforesaidtemporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 381 he 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 hisclaim is liable to be rejected. Further, thethe saidsaid settlements [ भाग II-खंड 3 (ii) ]

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 has 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 oftemporary 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 ofdaily wages was not finalized and hence not published andthere 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 .

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 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 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.

5361

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

7. In these circumstances , the points for my consideration are-

1 "Whether the demand of the Petitioner in Wait List No. 381 for restoring the wait list of temporarymessengers in the Respondent/Bank and consequential appointment thereupon as temporarymessenger is justified ?"

(ii) "To what relief the Petitioner is entitled ? " Point Nos. 1 & 2 :

8. When the matter was taken up for hearing, it is reported by the representative of the Petitioner that he is notappearing for the Petitioner and the Petitioner also has notappearedbefore this Court for further proceedings and hence, the Petitioner was called absent and set exparte.

9. In this case, the Petitioner alleged that he was appointedbyRespondent/Bank during 1983 and worked asatemporarymessenger and during the year 1986-87 he was disengaged from service and again he was engaged as atemporarymessenger and all of a sudden, on 31-3-97 he wasterminated from service without any notice or notice ofcompensation. Since he has continuously worked for more than240 days in a continuous period of 12 calendar months , he is entitled to the benefits of Section 25F of the I. D. 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 are not established before this Tribunal .Hence, I find the Petitioner is not entitled to any reliefas claimedbyhim . Nocosts.

10. Thus, the reference is disposed ofaccordingly. (Dictated to the P. A. , transcribed and typed by him, correctedandpronounced by me in the open Court on this daythe 31st January, 2007) .

K. JAYARAMAN , Presiding Officer नईदिल्ली, 20 जुलाई , 2007

का. आ. 2271.-औद्योगिक विवाद अधिनियम, 1947. (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडियाके प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 86/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था । [सं. एल-12012/40/1999- आई आर ( बी-I ) ] अजय कुमार , डेस्कअधिकारी New Delhi, the 20thJuly, 2007

S.O. 2271.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 86/2004) ofthe Central Government Industrial Tribunal -cum -Labour Court, Chennai as shown in the Annexure, in the Industrial Disputebetween the management of State Bank of India and their workmen, which was received by the Central Government on 20-7-2007.

[No. L- 12012/40/ 1999- IR (B -I) ] AJAY KUMAR, Desk Officer 5362

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC . 3 ( ii)] ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman,Presiding Officer

Industrial Dispute, No. 86/2004

(Principal Labour Court CGID No. 260/99)

[In the matterof the dispute for adjudication under clause (d) ofsub-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

Sri S. Ganesan

: IParty/Petitioner

AND

The Assistant. General : II Party/Management

Manager, StateBank of India, Z. O. , Madural.

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative

For theManagement : Mr. B. Rajendran, Advocate

AWARD

The Central Government , Ministry of Labour vide Order No. L -12012/40/99 - IR(B - I) dated 10-5-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute onits file as CGID No. 260/99 and issued notices toboth parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe 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. 86/2004.

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri S. Ganesan wait list No. 221 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, towhat relief the said workman is entitled ? "

3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre inStateBank of India and he was given appointment as messenger after an interview and medical

examination. He was appointed on temporary basis at Nilakottai branch from 04-01-1979 . 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 settlement under Section 18 ( 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 1985-86 were classifted 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 held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Nillakottai 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 tojoin at the branch where he initially worked as a class IV employee . From 4-1-1979 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Nillakottai 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 31-3-97 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 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 31-3-97 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 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 [भाग II-खंड 3 (ii) ]

5363 भारत का राजपत्र: अगस्त 11 , 2007/ श्रावण 20, 1929

service is unjust and illegal. Further, the settlements are repugnant to Sections 25G and 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 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 ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing himtoworkunder 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 reliefof regular employment in Respondent/Bank with all attendant benefits.

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 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 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 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 implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problemwasdue 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 of492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 221 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 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 has no jurisdiction to entertain such plea . It is not correct to saythat 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 31-12-94were 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 ofdaily 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.

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929

Tribunal. 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.

(Dictated to the P. A. , transcribed and typed by him, correctedandpronounced by me in the open court on this day the 31st January, 2007).

K. JAYARAMAN , Presiding Officer

नई दिल्ली, 20 जुलाई, 2007

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 employment . Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberatelydelayed in filling up the vacancies by the wait listedworkman with ulterior motive. The Respondent/Bank hasbeen 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 awardmay be passed in his favour:

का. आ. 2272,-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 223/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/377/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 20thJuly, 2007

S. O. 2272. In pursuancemance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 223/ 2004) ofthe 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 , which was received by the Central Government on 20-7-2007.

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 ofIndia 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 ofclass 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 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 .

[No. L- 12012/377/1998 - IR (B-I) ] AJAY KUMAR, Desk Officer 7. In these circumstances , the points for my consideration are :-

ANNEXURE

(1) "Whether the demand of the Petitioner in Wait List No. 221 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL - CUM -LABOUR COURT, CHENNAI Wednesday, the 31st January, 2007 PRESENT

(ii) "To what relief the Petitioner is entitled?"

Point Nos . 1 & 2 :

K. Jayaraman, Presiding Officer Industrial Dispute No. 223/2004

(Principal Labour Court CGID No. 98/99) 8.When the matter was taken up for hearing, it is reported by the representative of the Petitioner that he is notappearing for the Petitioner and the Petitioner also has not appearedbefore this Court for further proceedings and hence, the Petitioner was called absent and set ex parte.

[In the matter of the dispute for adjudication under clause (d) of sub -section ( 1 ) and sub - section 2 (A) of Section10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

IParty/Petitioner

SriP. Pushparaj

AND

The Assistant General :

:IIParty/Management

Manager, StateBank of India, Z. O. , Chennai

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative

For the Management : M/s. K. Veeramani, Advocates 9. In this case, the Petitioner alleged that he was appointed by Respondent/Bank during 1979 and worked asa temporary messenger and during the year 1986-87 he wasdisengaged from service and again he was engaged as atemporarymessenger and all of a sudden, on 31-3-97 he wasterminated from service without any notice or notice of compensation. Since he has continuously worked for more than 240days in a continuous period of 12 calendar months , he is entitled to the benefits of Section 25F of the I. D. Act . But no evidence was adduced on behalf of the Petitioner nos 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 ofthe Petitioner are not established before this 5365 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II- खंड 3 ( ii ) ]

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012 /377/ 98 - IR (B - I ) dated 5-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 98/99 and issued notices to both parties. Both sides entered appearance and filed their claim staternent 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. 223/2004.

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri P. Pushparaj , wait list No. 487 for restoring the wait list of temporary messengers in the establishment ofState 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 Claim Statement are briefly as follows :-

working on temporary basis in Guindy 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 31-3-97 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 sentto 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 Petitioner requested the Respondent/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/Bank took up an unreasonable stand thatthe service and the number of days worked by Petitioner were treated as of no consequence , since accordingto 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 25G and 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 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 thetemporaryworkmen which amounts to violation ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment ofpetty cash or by directing himtoworkunder assumed name or by both which amounts tounfair 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 .

3287 G1/07-31 5366

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20 , 1929 [PART II- SEC. 3( ii) ] law, retrenchment and implemented by Respondent/Bank. 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 the 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 correctto 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 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further, for circle of Chennai wait list ofdaily 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 .

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 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 whentheir 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 settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3 ) ofI.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 wait listed as candidate No. 484 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 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 (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 completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any contimious 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 date was extendedupto 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 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 aforesaid settlements, out of744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was waitlisted at 484 he was not appointed. The said settlements werebona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and hisclaim is liable to be rejected. Further, the said settlements

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 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 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.

5367 भारत का राजपत्र अगस्त 11, 2007/ श्रावण 20 , 1929

[ भाग II- खंड 3 (ii) ]

7. In these circumstances , the points any consideration are :-

(i) "Whether the demand of the Petitioner in Wait List No. 487 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporarymessenger is justified ?"

(ii) "To what relief the Petitioner 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 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 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 Writ Petition before the Supreme Courtto 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 filed it before the Supreme Court at the time offinal 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 asitis 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 andtherefore, 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.

atbranches/offices are not arowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they haveinvoked 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 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 LAB and IC 2248 CentralBank ofIndia Vs. S. Satyam and Others the Supreme Court has held that Chapter V -A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmento 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 workmen. 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 onbehalfof 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 of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . M1 and the averments ofMW1 and MW2 and their testimonies during thecross examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking hisfuture with the settlements. Further, Clause 1 of Ex. M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B and 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 1 (a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers, 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 , copyofwhich ismarked 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 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 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. M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex. M10 wasprepared, but it is mentioned in Ex . M10 that it was preparedpared based on the settlement dated 17-11-87,27-10-88 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 employees 5368

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ] and 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively But , when MW1 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 to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 inW. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement wasconcerned 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 whowere paidwages daily on mutual agreement basis . In such circumstances, as rightly contended the Respondent arenotjustified 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 of Constitution of India. Further , the averment of MW1 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 . It is further contended on behalf of the Petitioner 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 industrywise settlement, it is not so in the case of casuals. Therefore, both belong 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 of absorption . Therefore, it is violative of Article 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx. M10 namely 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 , no wait list was released/ published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the firstadvertisement 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. M10 has beenprepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex M1 was not produced at the time of conciliationproceedings held during the year 1997-98 held atChennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before thisTribunal marking it as a confidential document . It is further contended onbehalf 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 onabsorption 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 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 SastryAward are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC201 H. D. Singh Vs. Reserve Bank of India and other wherein the Supreme Court has held that "to 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 workmen is illegal . " Learned representative further contended that Ex. MI0 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 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, but in utter violation and inbreach of it. Though clause 2 (e) ofEx. 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 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 to 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 the averment of MW1 . Therefore, thetermination of the Petitioner who was in regular service ofthe Respondent/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 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 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 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and 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 witnesses during the cross examination hadbecome apparent that they have no personal knowledge about the settlements which are marked as Ex. M1 to M5. Above all, though the Respondent/Bank has referred to 5369 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खंड 3( ii) ]

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 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 Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 andtherefore, 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 I. Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II 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 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 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 andtherefore, 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 ofwait 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 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.

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/Bank and the federation were bona fide which were the only workable solution and isbinding 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 questioned by anyunion 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 claim of 11 workmen 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 ofplea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 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 an individual employee or a minority 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 rulings reported in 1997 ILLJ 308 K.C.P. Ltd. Vs.PresidingOfficer and Others wherein the Supreme Court has held that " settlement 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 ofthe 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 contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the 10. But, 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 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 I. D. 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 Petitioner was wait listed as per length ofhis engagement and could not be absorbed as he 5370

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929

contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd: Vs." State of Rajasthan and others wherein the Supreme Court has held that " settlement is arrived at bythe 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 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 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 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 workmanwith 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. 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 .

[PART II-SEC. 3 (ii) ] OrientPaper 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 also relied on the rulings reported in 1998 LAB IC 1507 А. 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 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 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 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 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 beer 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 theback 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.

[ भाग II- खंड 3 ( ii ) ]

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 . 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 orders oflower Courts . He further relied on the decision reported in 1997 II 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 ofconfirmation 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 cancandidate concerned is appointed in an 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 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 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 inAIR 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 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 dailywage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the nilings 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 mandatory but only directory, onsufficient grounds shown, the employer is permitted to 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 juniors were made permanent by the Respondent/ 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 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 letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe 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 the Respondents didnot get any right because of inclusion of their names in the said panel for permanent absorption in the services ofthe 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 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 rightto question the wait list and since there is no mala fide onthe 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 ofthe 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 nilings reported in 1992 LAB IC 2168 State of Haryana and Ors. 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 be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence ofa 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 Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby 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 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 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 case, a direction was given to regularise employees who have put in one year's service as far as possible and 5372

THE GAZETTE OF INDIA: AUGUST 11 , 2007/ SRAVANA 20 , 1929 [PART II-SEC. 3 (ii) ) Petitioner and therefore , the claim is to be dismissed with costs.

of service by that itself would not confer any legal right uponhimtobe 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 Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore . "

18. Further, the representative for the Petitioner contended that in a similar case , 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 same relief.

because an employee had worked for more than 240 days

[ भाग II- खंड 3 (ii ) ]

Description

Date

Ex. No.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work.

decisions of the Govt . in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, 1 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.

W9 16-07-86 Xerox copy of the service certificate issued by Guindy Branch.

Point No. 2 :

W10 05-09-91 Xerox copy of the service certificate givenbyGuindy branch of Respondent/ Bank.

The next point to be decided in this case is to what relief the Petitioner is entitled ?

W11 17-03-92 Xerox copy of the service certificate issued by World University service centre branch .

W12 06-12-93 Xerox copy of the service certificate issued by Guindy branch.

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.

W13 30-03-95 Xerox copy of the service certificate issued by Guindy branch

W14 18-03-95 Xerox copy of the service certificate issued by Guindy branch

(Dictated to the P.A. , transcribed and typed by him , corrected andpronounced by me in the open court on this day the 31st January, 2007. )

W15 10-11-97 Xerox copy of the service certificate issued by Guindy branch

K. JAYARAMAN, Presiding Officer

W16 10-11-97

Witnesses Examined :

Xerox copy of the service certificate issued by Guindy branch

: WWI Sri P. Pushparaj

Forthe Petitioner

W17 30-11-85 Xerox copy of the interview letter from Respondent Bank.

WW2 Sri V.S. Ekambaram

W18 24-07-89

For the Respondent : MW1 Sri C. Mariappan

Xerox copy of the interview letter from Respondent Bank.

MW2 Sri C. Ramalingam

W19 Nil

Documents Marked:

Description

Date

Ex. No.

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care and service conditions .

WI 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

W20 Nil Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex .M1.

W21 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption ofdaily wagers in Messenger vacancies .

W22 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4 . W23 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W24 17-03-97 Xerox copy of the service particulars- J.Velmurugan .

W25 26-03-97 Xerox copy of the letter advising selectionofpart time Menial-G. Pandi .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W26 31-03-97 Xerox copy of the appointment order to Sri G. Pandi.

W27 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month ofFebruary 2005 wait list No. 395 ofMadurai Circle .

W7 25-03-97 Xerox copy of the circular of Respondent/Bankto all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

3287 Gl/07-32 5374

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC. 3( ii )] Ex. No.

Description

New Delhi , the 20th July, 2007 W28 13-02-95 Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel ofwait list.

W29 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W30 09-01-92 Xerox copy ofthe minutes of the Bipartite meeting.

S. O. 2273. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 229/ 2004) ofthe 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, which was received by the Central Government on 20-7-2007.

W31 09-01-92

[No. L- 12012/430/ 1998 - IR(B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants.

W32 07-02-06

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

Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

Wednesday, the 31st January, 2007 W33 31-12-85

PRESENT

K. Jayaraman, Presiding Officer

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

Industrial Dispute No. 229/2004 For the Respondent/Management :

Ex. No. Date

Description

(Principal Labour Court CGID No. 128/99) MI 17-11-87 Xerox copy of the settlement

M2 16-07-88 Xerox copy of the settlement

M3 27-10-38 Xerox copy of the settlement

[In the matter ofthe dispute for adjudication under clause (d) ofsub -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] 09-01-91 Xerox copy of the settlement

BETWEEN

30-07-96 Xerox copy of the settlement

M6 09-06-95

Sri E. Anandan

: I Party/Petitioner Xerox copy of the minutes ofconciliation proceedings .

AND

28-05-91 Хегох copy of the order in W.P. No. 7872/91.

The Assistant General : II Party/Management M8 15-05-98

Manager, StateBank of India , Z. O.

Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa.

Chennai

M9 10-07-99 Xerox copy of the order of Supreme Court inSLP No. 3082/99 .

APPEARANCE

M10 Nil

Forthe Petitioner

Xerox copy of the wait list of Chennai Module.

Sri V. S. Ekambaram, Authorised Representative M11 25-10-99

For the Management

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99.

:M/ s. K. S. Sundar, Advocates

AWARD

नई दिल्ली, 20 जुलाई, 2007

का. आ. 2273.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 229/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-7-2007 को प्राप्त हुआ था ।

(सं. एल-12012/430/1998- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

The Central Government , Ministry of Labour vide Order No. L - 12012/430/98 - IR (B - I) dated 10-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 128/99 and issued notices toboth parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe 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. 229/2004.

'5375 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खंड 3 ( ii) ]

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri E. Anandan wait list No. 424 for restoring the wait list oftemporary messengers in the establishment ofState 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 Claim Statement are briefly as follows :-

and the Petitioner requesica the Respondent/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/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 engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware ofsettlement by which his services and number ofdays worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/ Bak before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service isunjust and illegal. Further, the settlements are repugnant to Section 25G and 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 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 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 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 .

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 I. D. Act in lieu ofprovisions 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. 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 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 settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3) 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 temporary basis atOverseas branch from 28-06-1984 . 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 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 settlement under Section 18 ( 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Overseas 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 initially worked as a class IV employee. From 28-6-1984,the Petitioner has been working as a temporary messenger and some tinies performing work in other branches also . While working on temporary basis in Overseas branch, another advertisement by the Respondent/ Bankwas 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. on31-3-97 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 Petitioner, he has made a fresh representation to Govt . to reconsider the reference 5376

THE GAZETTE OF INDIA: AUGUST 11 , 2007 / SRAVANA 20 , 1929 [PART II-SEC. 3 ( ii ) ]

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.

5. In the additional claim staternent, 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 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 eraployment . 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 workman 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 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 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. 424 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 ? " PointNo. 1 :

ofI. D. Act. In terms thereof, the Petitioner was considered forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Peritioner was wait listed as candidate No. 427 in wait list ofZonal Office, Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employces 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 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,ant , 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 employces 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 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 wain list was to lapse in Deceınber, 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 implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem wasdue to the facts that all the aforesaid teinporary employees were working in leave vacancies and not in regular permanen vacancies . In terms of aforesaid settlements, out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was it listed at 427 he was not appointed. The said settlements were bonz fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from quesoning the settlements directly or indirectly and his clain liable to be rejected. Further, the said settlements werenot 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 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 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 ofdaily wages was not finalized and hence not published and there

[ भाग II- खंड 3 (ii ) ]

ofthe relevant guidelines/circulars ofthe 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 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 Courtto 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 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. 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 retrenchinent as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

for Bank that the Petitioner has no valid and enforceable right appointment is untenable. It is further contended that onbehalfof 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 of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . Ml and the averments ofMW1 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 ofEx. M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B and 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 1 (a) of Ex. M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers , 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 on Staff matters , copyofwhich 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 casuals 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 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 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 . М10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to says as to when the wait list Ex. М10 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 . M1 , M3 and M4 respectively. But, when MW1 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 to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement 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 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 mutual agreement basis . In such circumstances , as rightly contended the Respondent 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 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 have invoked the relevant provisions of Chapter V - A ofthe I. D. Act and it is preposterous to contend that the Pctitioner has no valid and enforceable right for appointment as Section 25G and 25H are very much applicable tothe Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 Central Bank of India Vs. S. Satyam and Others , the Supreme Court has held that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 workmen. Therefore , the contention of the Respondent/ 5378

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC. 3 ( ii )] :

are notjustified and combined the list ofcandidates 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 ofArticle 14 of Constitution of India. Further, the averment of MW1 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/Bankby combining equals with unequals. It is further contended on behalf of the Petitioner 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 industrywise settlement , it is not so in the case of casuals. Therefore , both belong 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 of absorption. Therefore, it isviclative ofArticles 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx M10 namely wait list is not in conformity with the instructions of Ex. M2 and non -preparation of separate panels amounts to violation of circular. Secondly, ithas 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 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the firstadvertisement 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. 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 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 thetime of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement onabsorption 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 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 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to 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 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 later and therefore , the wait list under Ex. M10 which has been drawn up is contraryto 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 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 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 to 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 the averment ofMW 1. Therefore , the termination of the Petitioner who was in regular service ofthe Respondent/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 produced Ex.M6which 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 of Ex. M6. Though the Respondent/Bank produced Ex. M7 and M1 1 interim orders passed by High Court of Madras in WMP No. 11932/91 and 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 thecase of the Petitioner. Further, though the Respondent/ Management has examined two witnesses, the deposition of management witnesses during the cross examination hadbecome apparent that they have no personal knowledge about the settlements which are marked as Ex. Ml toM5 . 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 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 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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of 1. D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners inthe connected I. Ds have not completed 240 days , since the Respondent/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 5379 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II-खंड 3 ( ii) ]

have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II 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 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 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 andtherefore , 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 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.

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 workmen 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 conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and others wherein the Division Bench ofthe Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment , even those who belong to the minority union which had objected to the same . To that extent , it departs from the ordinary lawof 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 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 rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.PresidingOfficer and Others wherein the Supreme Court has held that " settlement 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 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 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 AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and others wherein the Supreme Court has held that " settlement is arrived at bythe 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 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 10. But , 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 ofthe 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 Sections 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 bona fide and are made with ulterior motive. Further, they have concealed the material facts that the Petitioner was waitlisted as per length of his engagement 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 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 bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly he was waitlisted 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 the rulings reported in 1991 I LLJ 323 Associated Glass 5380

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 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 workmanwith 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. 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 inthe Claim Statement .

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 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 matter of tenability ofa reference . Even though the Tribunal cannot gobeyond 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 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 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya 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 also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court , Madras, wherein it hasbeen 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 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 consider all incidental matters also and the order of reference should not be construed in the manner which wouldprolong the industrial adjudication . The Labour Court isexpected to decide the real nature of disputes betwcen

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II- SEC. 3 (ii ) ] 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 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 candecide 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.

[भाग II- खंड 3 ( ii ) ]

irregularly appointed candidate would arise , if the candidate concerned is appointed in an 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 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 they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption inthe Respondent/Bank. Fürther, 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 daily wages . Under these circumstances , 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 dailywage 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 ) 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 mandatory but only directory, onsufficient 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. 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 costs.

3287 G1/07-33 5382

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II-SEC . 3 (ii ) ]

wait list prepared by the Respondent/Bank , they are not 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 appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned inthe settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparationofwait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

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 same relief.

held that 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 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 ofpublic appointment which is not permissible . " Further, theSupreme 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 merelybecause atemporaryemployee 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 . " Further, in CDJ 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 an employee upon the expiry ofpurported periodofprobation would not arise . " Further , in CDJ 2006 SC395 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 . 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 Artícles 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 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 Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore. "

PointNo. 2 :

The next point to be decided in this case is to what relief the Petitioner is entitled ?

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 ( ii) ]

Dapaon

Ex. No. Date

21. Thus , the reference is answered accordin (Dictated to the P.A. , transcribed and typed by hun , corrected and pronounced by me in the open court on this day the 31st January, 2007. )

W14 Nil Xerox copy of the Reference book on staff matters Vol. III consolidated upto 31-12-95 .

W15 06-03-97

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

W16 06-03-97

Forthe Petitioner : WW1 Sri E. Anandan WW2 Sri V.S. Ekambaram

For the Respondent : MW1 Sri C. Mariappan

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W17 06-03-97

MW2 Sri C. Ramalingam

Documents Marked:

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

W18 17-33-97

Date

Description

Ex. No.

WI 01-08-88

Xerox copy of the service particulars-- J.Velmurugan .

W19 26-03-97

Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

Xerox copy of the letter advising selection ofparttime Menial-G. Pandi .

W20 31-03-97

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank forimplementation of Ex . M1.

Xerox copy of the appointment order to Sri G. Pandi .

W21 Feb. 2005

W3 24-04-91

Xerox copy of the pay slip of T. Sekar forthe monthof February, 2005 wait list No. 395 ofMadurai Circle .

W22 13-02-95

Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel ofwait list .

W23 09-11-92

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97

Xerox copy ofthe Head Office Circular . No. 28 regarding norms for sanction of messenger staff.

09-07-92

W24

Xerox copy ofthe minutes of the Bipartite meeting.

W25 09-07-92

Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97

Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

W26 07-02-06

Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97 .

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

W9 14-10-85 Xerox copy of the service certificate issued by Overseas Branch .

21-01-95

WI0

Xerox copy of the service certificate issued by Overseas Branch. 23-10-97

W11

Xerox copy of the service certificate issued by Overseas Branch .

23-10-97

W12

Xerox copy of the service certificate issued by Overseas Branch.

W13 Nil Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding appointment of temporary employees.

Xerox copy of the local Head Office Circular about conversion of part time employees and redesignate them as general attendants.

W27 31-12-85 Xerox copy of the local Head Office Circular about appointment of temporary employees in subordinate cadre .

For the Respondent/Management:

Description

Ex. No. Date

Xerox copy of the settlement. 17-11-87 M1

Xerox copy of the settlement .

M2 16-07-88

Xerox copy of the settlement.

M3 27-10-88

Xerox copy of the settlement .

M4 09-01-91

Xerox copy of the settlement.

M5 30-07-96

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings.

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91.

5384

Ex. No. Date

Description

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa .

M9 10-07-99 Xerox copy ofthe order of Supreme Court in SLP No. 3082/99.

M10 Nil 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. 1893/99.

नई दिल्ली, 23 जुलाई, 2007

का. आ. 2274.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नईके पंचाट ( संदर्भ संख्या 206/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । [सं. एल-12012/ 342/ 1998- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi, the 23rd July, 2007

S. O. 2274. -In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 206/ 2004) of the Central Government Industrial Tribunal -cuin- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workinen, which was received by the Central Government on 23-7-2007 .

[No. L- 12012/342/1998-1R (B - 1) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K.Jayaraman , Presiding Officer

Industrial Dispute No. 206/2004

(Principal Labour Court CGID No. 29/99) the matter of the dispute 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) , benween the Management of State Bank of India and their workmen]

BETWEEN

Sri V. Sengutruvan : IParty/Petitioner

AND

: II Party/ Management TheAssistant General Manager,

StateBank of India , Z. O. Chennai

THE GAZETTE OF INDIA: AUGUST 11 , 2007/SRAVANA 20 , 1929 [PART 11-SEC . 3 (ii) ]

APPEARANCE

For the Petitioner :SriV. S. Ekambarara, Authorised Representative For the Managernent M/ s . K. S. Sundar, Advocates

AWARD

TheCentral Government , Ministry of Labour vide Order No. L - 12012/342/ 98 - IR( B - I ) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principał Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 29/99 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 I. D. No. 206/2004 .

2. The Schedule mentioned in that order is as follows:--

"Whether the demand of the workman Shri V. Senguttuvan , wait list No. 393 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 Claim Statement are briefly as follows:---

The Petitioner was sponsored by Employment Exchange for the post of sub -staff in Class IV cadr in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atGuindy branch from 7-12-1981 . 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 settlement under Section 18 ( 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 employinent 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 broughtto 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 Guindy 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 5385 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II-खंड 3 ( ii ) ]

to join at the branch where he initially worked as a class IV employee. From 7-12-1981 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also. While working ontemporary basis in Guindy Airport 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 31-3-97 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 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 31-3-97 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 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 ofsettlement 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 25G and 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 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 temporaryworkmen which amounts to violation ofrelevant 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 all attendant benefits .

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 Respondent/Bank . The claim ofthe 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 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 17-11-87, 16-7-88 , 7-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI. D.Act . Interms 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.393 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 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 (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 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 that wait list was to lapse in December, 1991 and the cut off date was extendedupto 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 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 aforesaid settlements , out of 744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listed at 393 he was not appointed. The said settlements 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.

5386

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929 [PART II- SEC . 3 ( ii )]

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. 393 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 :

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 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 the Tribunal has no jurisdiction to entertain such plea. It is not correct to saythatdocuments 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 oftemporary 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 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 inthe connected industrial disputes 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 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 notice . Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad filed a Writ Petition before the Supreme Courtto 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 Court at the time offinal 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 asit 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 .

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 Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act . As perper 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 false to allege that the settlements are contrary to the rights of the

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under e 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 5387 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खंड 3( ii ) ]

preparedbased on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively. But , when MW1 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 to MW1 wait list under Ex .M10 was prepared on 2-5-92 but there is no pleading in the Counter 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, in which it is stated that ' it is clear that the 1987 settlement wasconcernedwith 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 whowere paid wages daily on mutual agreement basis. In such circumstances , as rightly contended the Respondent are notjustified and combined the list ofcandidates 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 of Constitution of India. Further, the averment of MW1 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 combining equals with unequals. It is further contended on behalf of the Petitioner 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 industrywise settlement, it is not so in the case of casuals . Therefore, both belong 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 of absorption. Therefore, it is violative of Article 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparationofEx . M10 namely 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 , no wait list was released/ published even after the Court order in WMP No. 11932/91 and 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. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M1 was not produced at the time of conciliationproceedings 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 thus Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though 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 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 who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 Central Bank of India Vs. S. Satyam and Others , the Supreme Court has held that Chapter V- A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 workmen. 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 of the settlements on absorption and which are statutory in character. Further , a combined study of Ex. M1 and the averments of MW1 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 . M1 deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of A. B and 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 1 (a ) of Ex. M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers, farashes , cash coolies , water boys , sweepers etc. for absorption along with the other éligible 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 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/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 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 . M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to says as to when the wait list Ex . M10 was prepared, but it is inentioned in Ex. M10 that it was 5388

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA20, 1929 [PART II-SEC. 3( ii ) ]

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 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 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 continuous service oftheRespondent/Bank and they are entitled to the benefits under the provisions of I.of I. D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I. Ds have riot completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Courthasheld 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 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 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 . 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 are in age group of40 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 .

the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have notbeen told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement onabsorption 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 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 SastryAward are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC201 H. D. Singh Vs. Reserve Bank ofIndia and Others wherein the Supreme Court has held that "to employ workmen as ' badlies' casuals or temporaries and to continue them as such for many years with the object of depriving them ofthe status and privileges of permanent 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 later 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 , 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 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 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 to 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 the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service ofthe Respondent/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 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 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 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the ycar 1999 and therefore , theydo not have any bearing in the case ofthe Pctitioner . Further, though the Respondent/ Management has examined two witnesses , the deposition of management witnesses during the cross examination hadbecome apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 ..

[भाग 1 ] - खंड 3 ( ii ) ]

in the ternis of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 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 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 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 inust 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 thein . 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 cstopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this casc 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 cic . 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 Claini Statement.

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 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 matier 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 todecide 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 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 length of his engagement 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 imessenger. 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 bona fide which were the only workable solution and is bindang on the Petitioner . The Petitioner accepted the senlement and accordingly he was waitlisted and therefore . the Petitioner is cstopped 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 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 claim of 11 workmen 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 conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 11 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 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 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 rulings reported in 19971 LLJ 308 K.C.P. Ltd. Vs. PresidingOfficer 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 second category made with a recognised majority union has extended application as it will be binding of all 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

3287 G1/ 07-34 5390

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II--SEC . 3 ( ii) ] the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Pails Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal cannot go belund 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. SambanthanVs. 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 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 consider all incidental matters also and the order of reference should not be construed in the manner which wouldprolong the industrial adjudication. The Labour Court isexpected 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 framedto 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 have been retrenched from the Respondent/Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and candecide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to thebackwages 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 .

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 andOthers 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 oftheir 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 ofthe opinion that the Respondents did not get any right because of inclusion of their names in the aid panel forfor 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, whenit 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 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 toquestion the wait list and since there is no mala fide onthe part ofthe Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made withmala fide motive. Under such circumstances , after the expiry ofthe 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 .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 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 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 enteredbya back door; (c) he was not eligible and qualified forthepost at the time of his appointment ; (d) his record of service since his appointment is not satisfactory. These arethe 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 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 case, a direction was given to regularise employees 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he shouldbe reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K.V. Vijeesh 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 ofappointment in Govt . service in an existing or a future vacancy. " In that case, Pruning of select list on reduction innumber ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number 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 5391 [भाग II-खंड 3 ( ii ) ]

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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 evenin recentdecision reported in 2006 4 SCC 1 Secretary, State ofKarnataka Vs. Uma Devi , the Supreme Court has heldthat " 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 madeby 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 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 awareofhis 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 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 ofpublic 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 atemporary 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. " Further, in CDJ 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 an employee upon the expiry of purported periodofprobation would not arise. " Further, in CDJ 2006 SC395Municipal 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 . 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 Articles 14 and 16 of the Constitution of India would be void in law. " Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only who have put in one year's service as far as possiblend subject to fulfilling the qualifications , it cannot be heid 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 Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II 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 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 , iould arise, if the candidate concerned is appointed in an 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 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 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 daily wages . Under these circumstances , 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 dailywage 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) 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 mandatory but only directory, onsufficient grounds shown , the employer is permitted to 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 juniors were made permanent by the Respondent/ 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 5392

THE GAZETTE OF INDIA : AUGUST 11.2007 / SRAVANA 20, 1929

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 Govt . 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 , learned counsel for the Respondent contended that since the Petitioner lias 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 sentlements 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. Under such circumstances, it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for theRespondent . Though in the Clairn 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 settlement was noi a bona fide in nature or it has been arrived at on: ccount of mala fide , misrepresentation, fraud or even corruption or 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 RespondentBank has got sanctioned posts for temporary 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 Petitioner comended that in 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 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 ofcontinuous 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

[PART II -SEC . 3 ( ii ) ] 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 iny 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 clainued 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 ine in the open court on this day the 31st January, 2007. )

K. JAYARAMAN, Presiding Officer Witnesses Examined :

For the Petitioner : WWI Sri V. Senguttuvan WW2 Sri V.S. Ekambaram For the Respondent : MW1 Sri C Manappan MW2 Sri C. Ramalingam Documents Marked:

Ex. No. Date

Description

W1 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex . MI .

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex.Ml .

W3 24-04-91 Xerox copy of the circular of Respondent / Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of rnessenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent /Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

5393 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 ( ii ) ]

Description

Date

Ex. No.

Description

Date

Ex. No.

07-02-06

W24

W8 Nil

Xerox copy of the local Head Office Circular about conversion of part time employees and redesignate them as 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.

W25 31-12-85

W9 26-2-85 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 .

For the Respondent/Management :

1-4-86

W10

Xerox copy of the service certificate issued by Guindy Branch .

Description

Date

Ex. No.

Xerox copy of the settlement.

M1 17-11-87

W11 Nil

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement.

27-10-88

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care& service conditions .

Xerox copy of the settlement .

09-01-91

W12 Nil

Xerox copy of the settlement.

30-07-96

M6 09-06-95

Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95.

Xerox copy of the minutes of conciliation proceedings.

W13 06-03-97

28-05-91 Xerox copy of the order in W.P. No. 7872/91.

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa. 06-03-97

W14

M9 10-07-99

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj.

Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

06-03-97

W15

Xerox copy of the wait list of Chennai Module.

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post--J. Velmurugan.

25-10-99

M11

W16 17-403-97

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 .

नई दिल्ली, 23 जुलाई, 2007

26-03-97

W17

Xerox copy of the letter advising selection ofpart time Menial-G. Pandi.

31-03-97

W18

Xerox copy of the appointment orderto Sri G. Pandi.

Feb. 2005

W19

Xerox copy of the pay slip of T. Sekar forthe month of February 2005 wait list No. 395 of Madurai Circle .

का. आ. 2275.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 202/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । 13-02-95

W20

[सं. एल-12012/338 / 1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी Xerox copy of the Madurai Module Circular letter about engaging temporary employees fromthe panel of wait list.

New Delhi , the 23rd July, 2007 09-11-92

W21

Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

09-07-92

W22

Xerox copy ofthe minutes of the Bipartite meeting.

09-07-92

W23

S. O. 2275.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 202/ 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 , which was received by the Central Government on 23-7-2007.

[No. L- 12012/ 338 / 1998 -IR (B -I) ] AJAY KUMAR, Desk Officer 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.

5394

THE GAZETTE OF INDIA: AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II- SEC. 3 ( ii)] ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman, Presiding Officer Industrial Dispute No. 202/2004

(Principal Labour Court CGID No. 25/99)

[ In the matter of the dispute for adjudication under clause (d) of sub - section (1 ) and sub - section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen ]

BETWEEN

SriM. Arokia Das

: I Party/Petitioner

AND

: II Party/Management

TheAssistant General Manager, State Bank of India, Z. O. , Chennai

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative

For the Management : M/ s. K.S. Sundar, Advocate

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/ 338/ 98 - IR(B - 1) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court. Chennai and the said Labour Court has taken the dispute on its file as CGID No. 25/99 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 I. D. No. 202/2004

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri M. Arokia Das, wait list No. 566 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 Claim Statement are briefly as follows :-

The Petitioner was sponsoredby 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 temporary basis atRajaAnnamalai Puram branch . 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 settlement under section 18 ( 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Raja Annamalai Puram 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 initially worked as a class IV employce. The Petitioner has been working as a temporary messenger and some timesperforming work in other branches also . While working on temporary basis in West Mambalam branch, another advertisement by the Respondent/ Bankwas 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 31-3-97 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 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 31-3-97 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 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 ofsettlement by which his services and number ofdays 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 5395 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 ( ii ) ]

service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act. Thetermination 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 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 ofpetty cash or by directing him to workunder 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 .

the settlement , employees were categories 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 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 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 extendedupto 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 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 of 744 wait listed candidates, 357 temporary employees.were appointed and since the Petitioner was wait listed at 562 he was not appointed. The said settlements werebona fidewhich were the only workable solution and isbinding on the Petitioner. The Petitioner is estopped from questioningthe 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 ofbank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment ofPermanent Status to Workmen ) Act, 1981 doesnot apply to Respondent/Bank and the Tribunal has nojurisdiction 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 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 ofdaily wageswas 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.

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by. employment exchange and having undergone medic 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 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 Sections 18 ( 1 ) and 18 (3 ) of I. D. Act in lieu of provisions of law, retrenchment and implementedby 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. 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 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 settlements became subject matter of conciliation proceedings and minutes were drawn under section 18 (3 ) ofI. 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 wait listed as candidate No. 562 in waitlist of Zonal Office , Chennai . So far 357 wait listed temporary candidates, out of 744 waitlisted temporary employeeswere 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 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 5396

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC . 3 (ii ) ]

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 deniedanopportunity 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 .

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 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 listedworkmen with ulterior motive. The Respondent/Bank hasbeenarbitrarily 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 Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rulesofthe 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 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. 566 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 :

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 employees atbranches /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 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 who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank of IndiaVs. S. Satyam and Others the Suprente Courthas held that Chapter V-A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 workmen. Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right forappointment is untenable. It is further contended that onbehalfofthe 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 of the settlements on absorption and which are statutory in character. Further, a combined study of Ex. M1 and the averments ofMW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex .M1 deals with categorization of retrenched tenmporary employees into ' A, B and C ' , but this categorization of ' A, B and C ' is quite opposed to the doctrine of ' last 8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed interms 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 connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad 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 filedit before the Supreme Court at the time offinal hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been 5397 भारत का राजपत्र अगस्त 11, 2007/ श्रावण 20, 1929

[भाग II- खंड 3 (ii ) ]

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 of absorption. Therefore, it is violative of Articles 14and16 ofConstitution of India . Therefore , the Petitioner contended that preparation ofEx. M10 namely wait list is not inconformity with the instructions ofEx. 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 inWMP No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published inTheHindu 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. M10 has been prepared inviolation ofinstructions 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 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 ofthe 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 afterthe 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(ob) ofthe I. D. Act , 1947 , Though the Petitioner's work in the Respondent/Bank is continuous and though thePetitioner has performed the duties continuously which isstill in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative ofthe 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 that " to 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 workmen is illegal . " Learned representative further contended that Ex . M10 wait list has not beenprepared in accordance with principle ofseniority 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 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, but in utter violationand in breach of it . Though clause 2 (e) ofEx . 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 will be deemed to have refused it and the name shall stand deleted from the come-first go' or ' first come-last go ' and therefore, the categorization in Clause 1 is illegal. Clause 1 ( a) of Ex. Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers, 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 on Staff matters, copy ofwhich 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 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 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 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. 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 . M1 , M3 and M4 respectively. But, when MW1 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 to MW1 wait list under Ex. M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court hasheld in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as anexhibit, 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 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 treat one class and their action undoubtedly amounts to violation of 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 towriggle out the illegality committed or perpetrated by the Respondent/Bank by combining equals with unequals. It is further contended on behalf of the Petitioner 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 basisof industrywise settlement, it is not so in the case of

3287 Gl/07-35 5398

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC. 3(ii) ]

their application for absorption as per the bank's circular andtherefore , 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 are in age group of 40 to 50 years and for no fault oftheirs, they findthemselves stranded in life midstream. They have also not gainfully employed. In such circumstances, this Tribunal has to pass an award in their favour.

5399 भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929

union will be binding on all workmen of the establishment, 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. ,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 .

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 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 rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.Presiding Officer and Others wherein the Supreme Court has held that " settlement 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 ) . Asettlement of the first categoryhas limited 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 workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union of which 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 AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and others wherein the Supreme Court has held that " settlement is arrived at bythe 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 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 thehelphelp oof 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, 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 same.

[PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929

5400

reinstatement as alleged by him . Further , he 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 coming to the direction that all those adhoc 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 ofa 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 Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby aback 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 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 ofan 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 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 . 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 II 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 ofconfirmation of these employees whose entry itself was illegal and void is concemed, it is to be noted that question of confirmation or regularisation of an irregularlyappointed candidate would arise , if the candidate concerned is appointed in an 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 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 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept 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. Vijeesh 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 ofappointment 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 impending absorption of steam surplus staff and a policy decision has been taken to reduce the number 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 letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe 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 the Respondents 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. was 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 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 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 cannotbe said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry ofthe date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for [ भाग II- खंड 3( ii) ]

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 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 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 dailywage 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 ) 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 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 his juniors were made permanent by the Respondent/ 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 costs.

5401

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

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 atemporary 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 theoriginal appointment was not made by following a due process of selection as envisaged by relevant rules ." Further, in CDJ 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 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 . 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 Articles 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 Supreine 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 Govt . 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 , 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. Under such circumstances , it cannot be questioned by the Petitioner.

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ]

Documents Marked:

Ex. No. Date

Description

W1

01-08-88

Xerox copy of the paper publication in daily Thanthi based onEx. M1.

W2

20-04-88

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 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 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 cannot claim for reinstatement or regularisation in services ofthe Respondent/Bank.

Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation of Ex. M1 .

W3 24-04-91 Хегох copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4

01-05-91

Xerox copy of the advertisement in The Hindu on dailywages based on Ex. W4 .

W5

20-08-91

18. Further, the representative for the Petitioner contended that in a similar case , 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 same relief.

Хегох copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter ofZonal Office , Chennai about filling up of vacancies of messenger posts .

W7

25-03-97

PointNo. 2 :

Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

W9 09-03-87 Хегох copy of the service certificate issued by R. A. Puram branch .

W10 19-08-96

The next point to be decided in this case is to what relief the Petitioner is entitled ?

Xerox copy of the service certificate issued by R.A. Puram branch .

W11 Nil

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 January, 2007. )

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WW1 Sri M. Arockia Dass

WW2 Sri V.S. Ekambaram For the Respondent : MW1 Sri C. Mariappan

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care and service conditions .

W12 Nil Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

W13 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W15 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J . Velmurugan.

W16 17-03-97

MW2 Sri C. Ramalingam Xerox copy of the service particulars- J.Velmurugan.

5403

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II- खंड 3 (ii ) ]

Date

Ex. No.

Description

नईदिल्ली, 23 जुलाई, 2007

26-03-97

W17

Xerox copy of the letter advising selectionofpart time Menial--G. Pandi .

W18 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February 2005 wait list No. 395 ofMadurai Circle .

का. आ. 2276.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 205/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । W20 13-02-95

[सं. एल -12012/341/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्कअधिकारी Xerox copy of the Madurai Module Circularletter about engaging temporary. employees from the panel of wait list .

NewDelhi , the 23rd July, 2007 W21 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

W22 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W23

S.O. 2276. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 205/ 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, which was received by the Central Government on 23-7-2007 .

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 .

[No. L - 12012/341 / 1998 -IR (B - I) ] AJAY KUMAR, Desk Officer W24

ANNEXURE

07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

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

W25 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

Wednesday, the 31st January, 2007 PRESENT

For the Respondent/Management :

K. Jayaraman, Presiding Officer

Date

Ex. No.

Description

Industrial Dispute No. 205/2004 MI

Xerox copy of the settlement .

17-11-87

(Principal Labour Court CGID No. 28/99) M2

Хегох copy of the settlement .

16-07-88

M3 27-10-88 Xerox copy of the settlement .

Xerox copy of the settlement.

09-01-91

M5 30-07-96 Xerox copy of the settlement.

[ In the matter of the dispute 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 theManagement of State Bank of India and their workmen]

M6 09-06-95

BETWEEN

Xerox copy of the minutes ofconciliation proceedings.

: I Party/Petitioner

SriG. Sivaraj

M7 28-05-91

AND

Xerox copy of the order in W.P. No. 7872/91.

: II Party/Management 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa .

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

The Assistant General Manager, State Bank of India, ZonalOffice, Chennai

M10 Nil

APPEARANCE

Xerox copy of the wait list of Chennai Module.

Forthe Petitioner

25-10-99

M11

Sri V. S. Ekambaram, Authorised Representative :

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99 .

M/s . K. S. Sundar, Advocates For the Management :

5404

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ] AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/341 /98- IR(B - I) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 28/99 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. 205/2004 .

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri G. Sivaraj wait list No. 706 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justifieds 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 :-

Main 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 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 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 Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number ofdays 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 ofdays 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 Sections 25G and 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 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 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 all attendant benefits .

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 temporary basis as Thiruvallur Main branch from 8-10-1982 . 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 filedby 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 settlenient under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlementis 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Thiruvallur Main Branch . He was called for an interview by a Committee appointedby RespondentBank in this regard. But , they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From 18-10-1982 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Thiruvallur

5405 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खंड 3 ( ii ) ]

werenot 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 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 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 ofdaily wageswas 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 .

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 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 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.

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 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 17-11-87, 16-7-88 , 7-10-88, 9-1-91 and 30-7-96. The said settlements 'became subject matter of conciliation proceedings and minutes were drawn under Section 18(3) of I. D. Act. Interms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was waitlisted as candidate No. 700 in waitlist of Zonal Office, Chennai . So far 357 wait listed temporary 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. 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 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 categories 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 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 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 filling up vacancies which were to arise upto 31-12-94 . 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 aforesaidtemporary employees were working in leave 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 700, 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 his claim is liable to be rejected. Further, the said settlements

3287 G1/07-36 5406

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20 , 1929 [PART II -SEC. 3 (ii)] 7. In these circumstances , the points for my consideration are :-

(i) "Whether the demand of the Petitioner in Wait List No. 706 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. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interviewand having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate 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 notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad 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 entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time offinal 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 andtherefore, 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 .

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 for appointment as Section 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank ofIndia Vs. S. Satyam and Others the Supreme Court has held that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmento 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 workmen. 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 onbehalfof 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 of the settlements on absorption and which are statutory in character. Further, a combined study of Ex. M1 and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 ofEx. M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B and 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 1 (a) of Ex. M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies, water boys , sweepers etc.for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casualsto do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copyofwhich 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 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 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 each module as per Ex. M10 in this case. Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 isunable 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. Onbehalf 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 employees at branches/offices are not allowed to be in service 9-1-91 which are marked as Ex. MI , M3 and M4 respectively.

5407 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 (ii ) ]

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. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which isstill 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 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to 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 workmen is illegal . " Learned representative further contended that Ex. M10 wait list has notbeenprepared 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 Ex . MIO 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 inbreach ofit . 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 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 to show how he was 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 averquent and also for the averment ofMW1 . Therefore , the termination ofthe 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 settlement on absorption oftemporary 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 onlywith regard to modification of Ex. Mi to M4 made in terms of Ex. M6. Though the Respondent/Bank produced Ex. M7 and Mll interim orders passed by High Court of Madras in WMP No. 11932/91 and 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 marked as Ex. MI to MS . Above all, though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 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 to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter 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, 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 perBipartite Settlement while the 1988 settlement dealt with dailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly 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 treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further, the averment of MW1 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 perdeposition ofMW1 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 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 violative of Articles 14 and 16 of Constitution of India. Therefore , the Petitioner contendedthatpreparation ofEx. M10 namely wait list is not inconformitywith the instructions ofEx . 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 WMPNo. 11932/91 and 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 elear that Ex. M10 has been prepared in violation ofinstructions 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 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 to 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 5408

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC. 3(ii)] 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 daysand more in a continuous period of 12 calendar months asenshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section25 andtherefore, they are deemed to be in continuous service oftheRespondent/Bank:dent/Bank and they are entitled to the benefits under the provisions of I. D. Act . It is further contended on behalfof the Petitioner that though some of the Petitioners inthe connected I. 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 a period of 12 calendar months. He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Courthas 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 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 letters produced bythe Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employeesemployees who have reported to have submitted their application for absorption as per the bank's circular andtherefore, their retrenchment is illegal. In all these cases , the Petitioners were in employment as sub- staff in early 1980s but weredenied further engagement on account of settlements/ lapsing ofwait lists and out ofthese 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 40to 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.

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 as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation werebona fidewhich were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement 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 questionedby anyunion and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 ILLJ 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 claim of 11 workmen and the workmen resigned from the job and receivedterminal 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 ofconciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 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 union will be binding on all workmen ofthe establishment , even those who belong to the minority union which had objected to the same. To that extent , it departs 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, 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 rulings reported in 1997 ILLJ 308 K.C.P. Ltd. Vs. PresidingOfficer 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 ). Asettlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majorityunionhas extended application as it will be binding onall workmen of the establishment. Even in case of the first category, if the settlement was reached with a 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 AIR 2000 SC 469 National Engineering 5409 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खंड 3 ( ii ) ]

Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will ofthe 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 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 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 same.

cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings ofparties . " 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 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 NewspapersP. Ltd. case reported in AIR 1993 SC 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 isexpected 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 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 ththe 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 backwages 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 .

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 . 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.

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II SEC. 3 ( ii) ] discriminatory. He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul

irrespective 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 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 II 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 entry itselfwas illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularlyappointed candidate would arise , ifthe candidate concerned is appointed in an 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 purported regularisation or confirmation is given, it would be anexercise 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 they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption inthe Respondent/Bank. Further , he relied on the rulings reported inAIR 1997 SCC 3657 Himanshu Kumar Vidyarthi &Ors. Vs. State of Bihar and Ors . wherein the Supreme Courthas held that " they are temporary employees working on daily wages . Under these circumstances , 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 dailywage 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) 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 mandatory but only directory, on sufficient grounds shown , the employer is permitted to 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 thathis juniors were made permanent by the Respondent/ 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 costs.

and Others wherein the Supreme Court has held that " by its letter dated 1-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir 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 preparedand 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 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 ofthe Respondents as contained in the W.P. was thus , misconceived and therefore, the learned Single Judge and the Division Bench, whenit 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 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 mala fide onthe part ofthe 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 ofHaryana and Ors. Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those adhoc 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 tothe existenceof 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 Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby a backdoor; (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 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 bejustified 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 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 5411 भारत का राजपत्र: अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खंड 3 ( ii ) ]

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 settled legal position , as noticed hereinbefore ."

18. Further, the representative for the Petitioner contended that in a similar case, 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 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 has also held that each casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Courtprobably 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 15. Learned Senior Advocate further argued that even in recent 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, 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 oftemporary 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 ofhis 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 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 ofpublic 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 It has to be clarified that merely because appointee. atemporary 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 . " Further, in CDJ 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 ofan employee upon the expiry ofpurported period ofprobation would not arise." Further , in CDJ 2006 SC395 Municipal Council , Sujanpur Vs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment ofthe Respondent was not in sanctionedpost. 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 Articles 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 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 5412

THE GAZETTE OF INDIA: AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC. 3 (ii )]

Ex. No. Date

Description

regularisation of reinstatement in the Respondent/Bank as alleged by him. Therefore , I find this point against the Petitioner.

1982-83 Xerox copy of the service certificate issued by Thiruvallur branch.

Point No. 2 :

W10 30-12-04 Xerox copy of the service certificate issued by Thiruvallur main branch.

The next point to be decided in this case is to what relief the Petitioner is entitled ?

W11 27-06-89 Xerox copy of the interview letter received from Thiruvallur branch.

W12 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

W13 Nil

21. Thus, the reference is answered accordingly.

Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95 .

(Dictated to the P. A. , transcribed and typed by him , corrected and pronounced by me in the open court on this daythe 31st January, 2007.)

W14 06-03-97

K. JAYARAMAN, Presiding Officer

Xerox copy of the call letter from Madurai Zonal office for interview of messenger post-V. Muralikannan.

Witnesses Examined :

W15 06-03-97

For the Petitioner

Xerox copy of the call letter from Madurai Zonal office for interview of messenger post-K . Subburaj .

:WW1 Sri G. Sivaraj WW2 Sri V. S. Ekambaram

W16 06-03-97

Forthe Respondent : MW1 Sri C. Mariappan MW2 Sri C. Ramalingam

Xerox copy of the call letter from Madurai Zonal office for interview ofmessenger post-J.Velmurugan.

Documents Marked :

W17 17-03-97 Xerox copy ofthe service particulars- J.Velmurugan.

Ex. No. Date

Description

W18 26-03-97

W1 01-08-88

Xerox copy of the letter advising election ofpart time Menial-G. Pandi.

Xerox copy of the paper publication in daily Thanthi based on Ex .M1 .

W19 31-03-97

W2 20-04-88

Xerox copy of the appointment order to Sri G. Pandi .

W20 Feb. 2005

Xerox copy of the administrativę guidelines issued by Respondent/Bank for implementation of Ex.M1 .

W3 24-04-91

Xerox copy of the pay slip of T. Sekar for the month ofFebruary, 2005 wait list No. 395 ofMadurai Circle .

W21 13-02-95

Хегох copy of the circular of Respondent/Bank to all Branches regarding absorption ofdaily wagers in Messenger vacancies .

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W4 01-05-91

W22 09-11-92

Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91

Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W23 09-07-92

Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

meeting. Xerox copy of the minutes of the Bipartite W6 15-403-97

W24 09-07-92

Xerox copy ofthe circular letter ofZonal Office , Chennai about filling up of vacancies of messengers posts.

W7 25-03-97

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 .

W25 07-02-06

Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

Xerox 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 instruction in Reference book on staff about casuals not to be engaged at office /branches to domessengerial work.

Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

5413

भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929

भाग II- खंड 3 (ii ) ?

Far the Respondent/Management:

Description

Date

Ex. No.

MI 17-11-87 Xerox copy of the settlement.

M2 16-07-88 Xerox copy of the settlement .

M3 27-10-88 Xerox copy of the settlement.

M4 09-01-91 Xerox copy of the settlement .

M5 30-07-96 Xerex copy of the settlement.

M6 09-06-95 Xerox copy of the minutes of conciliation proceedings.

M7 28-405-91 Xerox copy of the order in W.P. No. 7872/91 .

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa.

M9 10-407-99 Xerox copy ofthe order of Supreme Court in SLP No. 3082/99 .

Industrial Dispute No. 209/2004 (Principal Labour Court CGID No. 47/99)

[In the matter of the dispute for adjudication under clause (d) of sub - section ( 1 ) and sub -section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner Sri M. Jayakumar

AND

: II Party/Management The Assistant General Manager, State Bank of India . Z. O. ,

Chennai

APPEARANCE

Forthe Petitioner

Mio Nil 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. 1893/99.

नई दिल्ली, 23 जुलाई, 2007

का. आ. 2277.- औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 209/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । [सं. एल-12012/309/1998 - आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 23rd July, 2007

S. O. 2277.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 209/ 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 , which was received by the Central Government on 23-7-2007.

[No. L - 12012 /309/ 1998 -IR (B -1 ) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007 PRESENT

K. Jayaraman , Presiding Officer

3287 G1/07-37

: Sri V. S. Ekambaram, Authorised Representative.

For theManagernent : M/ s . K. S. Sundar, Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L - 12012/309 /98 - IR(B - I) dated 2-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 47/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe 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. 209/2004 .

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri M. Jayakumar, wait list No. 516 for restoring the wait list oftemporary messengers in the establislunent of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so,towhat relief the said workınan is entitled ?" 3. The allegations of the Petitioner in the Claim Statement are briefly as follows:--

THE GAZETTE OF INDIA: AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC . 3 (ii) ]

repugnant to Section 25G and 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 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 ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him towork under assumed name or by both which ainounts 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.

Supreme Court in the form ofWrit Petition filed by StateBank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. TheRespondent/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 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the West Mambalam 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 initially worked as a class IV employee . From 21-1t)-1981, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. Whileworking on temporary basis in Kottur 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 31-3-97 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 ofthe 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 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand thatthe 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

[ भाग II- खंड 3 (ii) ]

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 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 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 listedworkman with ulterior motive. The Respondent/Bank hasbeenarbitrarily 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 Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rulesofthe 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 false to allege that the settlements are contrary to the rights of the Petitioner. Hence , the Petitioner prays that an award may bepassed in his favour.

7. In these circumstances , the points for my consideration are:-

(i) " Whether the demand of the Petitioner in Wait List No. 516 for restoring the wait ilst of temporarymessengers in the Respondent/Bank and consequential appointment thereupon as temporarymessenger is justified ?"

(ii) "To what reliefthe Petitioner is entitled ?"

Point No. 1:

cannot turn around and claim appointment. Such ofthose temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement, employees were categories 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 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 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 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 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 of 744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listed at 513 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 indirectlyand 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 the 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 oftemporary 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 ofdaily 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 .

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ] the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employces 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 concernedandwhile the matter was pending in Writ Peution 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 asit 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 demed 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.

workmen . 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 onbehalf of the Petitioner that Ex . W'2, W3 and WS 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 setdements on absorption and which are statutory in character. Further, a combined study of Ex. MI and the avernments ofMW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has givena raw dealto the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex. Ml deals with categorization of retrenched temporary employees into A. B and C", but this categorization of 'A, B and C' is quite opposed to the doctrine of ' last come- first go ' of ' first come-last go ' and therefore, the categorization in Clause 1 is illegal. Clause i ( a ) of Ex. M1 provides an opportunity to persons who were engaged on casualbasis and allowed to work in leave/ casual vacancies ofincssengers, farashes, cash coolics, water boys. sweepers eic.for absorption along with the other eligible categorics of temporary employees is not valid. Furler, engaging casuals to do messengerial work is in contravemion of the guidelines mentioned in Reference Book on Staff makers , copyofwhichis marked as Ex. W8 . Further, the appointment of daily wage basis for regular massegerial jobs ero. ire strictlyprohibited as per bank's chroniacs/instructions. In such circumstances , the absorption of casuais along with the eligible categories is not valid Therefore, these persens who were engaged by the Respondent/Beuk en casual basis should not be given permanent appoinment in the bank service . Those casuals were given more bonencial treatment in the matter ofarriving at qualifying service for interview and selection. But, temporary employees have not been informed about titis amendment witch 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/Bark has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to says as to when the wait list Ex . M10 wasprepared, but it is mentioned in Ex . M10 that it was preparedbased 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 MW1 has spoken about the settlements , he deposed that settiement dated 27-10-86 was not inchided 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 beld statement. Further, according to MWI wait list under Ex .M10 was prepared on 2-5-92 but there is no pleadingin the Counter 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, in which it is stated that it is clear that the 1987 settlement [ भाग II-खंड 3 ( ii ) ]

5417

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

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 201 H.D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to 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 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 whojoined the service later 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 , 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 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 to 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 the averment of MW1 . Therefore , thetermination 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 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 Respondent/Bank which says only with regard to modification of Ex. Ml to M4 made in terms of Ex. M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased to have any relevance when the inain 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 hadbeconie apparent that they have no personal knowledge about the settlements which are marked as Ex . M ) 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 and it constitutes post reference period and hence evidence of Respondent/ Bank has no application to the Petitioner's case . The 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 mutual agreement basis. In such circumstances , as rightly contended the Respondent are notjustified and combined the list of candidates covered under 1987 settienient and 1988 settlement since they fornied two distinct and separate classes and they cannot treat ane class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. Further, the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality cominitted or perpetratedby the Respondent/Bank by combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees wcre appointed after due process of selection and were paisi wages on the basis of industrywise settlement , it is no: so in the case of casuals . Therefore, both belong 10 ..o 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 of absorption . Therefore , it is violative of Articles 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx. M10 namely wait list is not in conformity with the instructions of Ex. M2 and non - preparation of separate peneis amounts to violation of circular. Secondly, has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 το 1994. Furthermore , no wait list was released/ published even after the Court order in WMP No. 11932/91 and 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 paruculars 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 not produced at 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 narking it as a confidential document . It is tumher 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 : leave vacancy. Further, even before or after the settlement en 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 1. D. Act , 1947. Though the Petitioner's work in the Respondent/ Bank is continuous and though the Petitioner has performed [PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA: AUGUST 11 , 2007/ SRAVANA 20, 1929

5418

Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I. D. Act . It is further contended on behalfofthe Petitioner that though some of the Petitioners in the connected I. 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 a period of 12 calendar months . He also relied on the rulings reported in 1985 II 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 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 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. 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 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.

length ofhis 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 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 bona fide 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 questioned by anyunion 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 claim of 11 workmen 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 ofplea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II 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 unionwill 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 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 rulings 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 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 second category made with a recognised 10. But , as against this , the learned Senior counsel for the Responden /Bank contended that the reference made by 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 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 bona fide and are made with ulterior motive. Further, they have concealed the material facts that the Petitioner was wait listed as per 5419 [ भाग II- खंड 3 ( ii) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

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 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 AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State ofRajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will ofthe 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 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 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 same.

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 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 1998 LAB IC 1664 Van Sagnathar OrientPaper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya 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 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 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 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 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 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 thebackwages 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 .

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. 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 .

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 12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability 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 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 5420

[PART 11- SEC. 3 (ii ) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20 , 1929

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 Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby a backdoor; (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 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 presunted 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 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 . 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 orders oflower Courts . He further relied on the decision reported in 1997 II 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 ofconfirmation of these eniployees 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 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 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 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. Vijeesh 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 ofcompetitive examination acquires a right ofappointment in Govt. service in an existing or a future vacancy " . In that case , pruning of select list on reduction in number ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointinents according to their comparative inerits. 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 andOthers 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 oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe 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 ofthe opinion that the Respondents did not get any right hecause of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had coine 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, whenit 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 merit list has no indefeasible right to appointment even if a vacancy exists" and relying on all these decisions , learned counsel fer the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide onthe 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. Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that ail those adhoc temporary employees who have continued for more than a year should be regularised, we find it difficua to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means and therefore, they are not entitled to clairu any absorption 5421 [ भाग II- खंड 3 ( ii)

भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20, 1929

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 daily wages . Under these circumstances , 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 , their disengagement is not 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 I.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 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 hisjuniors were made permanent by the Respondent/ 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 then 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 costs.

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 atemporary 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 . " Further , in CDJ 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 ofan employee upon the expiry of purported period of probation would not arise ." Further, in CDJ 2006 SC 395 Municipal Council , Sujanpur Vs. Surinder Kumar , theSupreme Court has held that " it is not disputed that the appointment ofthe 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 Articles 14 and 16 of the Constitution of India would be void in law." Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro 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 uponhim to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions ofthis 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 settled legal position, as noticed hereinbefore . "

16. Relying on all these decision, 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 appointnient thereon as temporary messeriger 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 15. Learned Senior Advocate further argued that even in recent 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 , 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 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 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 . 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 ofpublic appointment which is not permissible. " Further ,

3287 GI/07-38 5422

thepreparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner

[PART II- SEC. 3 (ii) ]

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typedby him, corrected and pronounced by me in the open Court on this daythe 31st January, 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :

For the Petitioner

17. I find much force in the contention ofthe learned ounsel for the Respondent . Though in the Claim Statement, the Pioners have made so many allegations with regard topreparation of list and also settlements entered into between the Respondent/Bank and Federation , at the time ofreference, 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 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 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 cannot claiın for reinstatement or regularisation in services ofthe Respondent/Bank .

18. Further, the representative for the Petitioner contended that in a similar case, this Tribunal had ordered for reinstatemerit 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 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 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 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.

PaintNo. 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 atemporary 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 .

: WW1 Sri M. Jayakumar

WW2 Sri V.S. Ekambaram For the Respondent : MW1 Sri C. Mariappan

MW2Sri C. Ramalingam Documents Marked:

Date

Ex. No.

Description

WI 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/ Bank to all Branches regarding absorption of daily wagers in Messenger vacancies ..

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers.

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/ Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97 .

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work .

W9 23-01-82 Xerox copy of the service certificate issued by West Mambalanı Branch.

W10 21-09-83 Xerox copy of the service certificate given by West Mambalam Branch of Respondent/Bank .

W11 17-07-91 Xerox copy of the service certificate issued by T. Nagar Branch .

5423 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खंड 3 ( ii) ]

Date

Ex. No.

Description

Date

Description

Ex. No.

31-03-97

W31

W12 Nil

Xerox copy of the appointment order to Sri G. Pandi .

Xerox copy of the service certificate issued by West Mambalam Branch.

Feb. 2005

W32

W13 Nil Xerox copy of the service certificate issued by Besant Nagar Branch .

Xerox copy of the pay slip of T. Sekar forthe month ofFebruary, 2005 wait list No. 395 ofMadurai Circle.

23-03-94

W14

W33 13-02-95

Xerox copy of the service certificate issued by Besant Nagar Branch.

10-10-95

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W15

Xerox copy of the service certificate issued by T. Nagar Branch.

W34 09-11-92

10-09-96

W16

Xerox copy of the service certificate issued by Saidapet Branch.

Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

10-09-96

W35 09-07-92

W17

Xerox copy ofthe minutes ofthe Bipartite meeting.

Xerox copy of the service certificate issued by Saidapet Branch.

W36 09-07-92

27-01-97

W18

Xerox copy of the service certificate issued by Saidapet Branch.

31-03-97

W19

Xerox copy of the service certificate issued by Triplicane Branch.

Xerox, copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of parttime general attendants. 27-10-97

W20

07-02-06

W37

Xerox copy of the service certificate issued by Kottur Branch.

28-10-97

W21

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 Nandambakkam Branch .

31-12-85

W38

W22 20-02-99 Xerox copy of the service certificate issued by Saidapet Bazzar Branch.

W23 Nil

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

Forthe Respondent/Management:

Description

Date

Ex. No.

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre& service conditions .

Xerox copy of the settlement.

17-11-87

W24 Nil

Xerox copy of the settlement .

16-07-88 M2

Xerox copy of the Reference book on staff matters Vol. III consolidated upto 31-12-95.

Xerox copy of the settlement.

27-10-88 M3

Xerox copy of the settlement.

09-01-91

W25 25-01-05

Хегох copy of the settlement.

30-07-96

Xerox copy of the letter given by Petitioner to Besant Nagar branch for service certificate .

M6 09-06-95

06-03-97

W26

Xerox copy ofthe minutes ofconciliation proceedings.

M7 28-05-91

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

Xerox copy of the order in W.P. No. 7872/91 .

06-03-97

W27

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa.

Xerox copy ofthe call letter from Madurai zonal office for interview ofmessenger post-K. Subburaj .

M9 10-07-99

06-03-97

W28

Xerox copy of the order of Supreme Court inSLP No. 3082/99 .

M10 Nil

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

Xerox copy ofthe wait list of Chennai Module .

17-03-97.

W29

Xerox copy ofthe service particulars- J. Velmurugan.

M11 25-10-99

26-03-97

W30

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99.

Xerox copy of the letter advising selection ofpart time Menial-G. Pandi.

5424

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20 , 1929 [PART II-SEC . 3 ( ii )] नई दिल्ली , 23 जुलाई, 2007

AWARD

का. आ. 2278.औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 208/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था ।

[सं. एल-12012/344/1998- आई आर ( बी-1 ) ]

The Central Government , Ministry of Labour vide Order No. L- 12012/344/98 - IR(B - I) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 31/99 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 i . D. No. 208/2004 .

अजय कुमार , डेस्क अधिकारी

NewDelhi , the 23rd July, 2007

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri M. Chandrasekar, wait list No. 496 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 ? " S.O. 2278. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 208/ 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 ef India and their workmen , which was received by the Central Government on 23-7-2007 .

3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

[No. L- 12012/344/ 1998 - IR (B - I ) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday , the 31st January, 2007

PRESENT

K. Jayaraman, Presiding Officer

Industrial Dispute No. 208/2004

(Principal Labour Court CGID No. 31/99)

In the matter of the dispute for adjudication under Liarse ( d) of Sub - section ( 1 ) and Sub - section 2 (A) of Section 10 of the industrial Disputes Act, 1947 (14 of 1947) , Between d Management of State Bank of India and their werkener

BETWEEN

sri M. Chandrasekar : I Party/Petitioner

AND

TheAssistant Generai : II Party/Management

Manager,

State Bank of India, Z. O. , Chennai

APPEARANCE

Fer the Petitioner

:Sri V. S. Ekambaram, Authorised Representative

For theManagement :M/ s . K. S. Sunder , Advocates

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre inState Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis as Velachery branch from 17-9-1984. The Petitioner was orally informed that his services were no more required . The non -employment ofthe 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 waich was taken up by the Supreme Court . The Respondent/Bank , in addition to its counter , filed a copy of settlement under section 18 ( 1 ) resched 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 1985-86 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Velachery 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 initially worked as a class IV employee . From 17-9-1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Gopalapuram 5425 भारत का राजपत्र: अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग 1 ] -- खंड 3 (ii) ]

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 31-3-97 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 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 31-3-97 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 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 25G and 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 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 włuch 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 serions 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 antendant benefits .

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 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 17-11-87, 16-7-88 , 7-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under section 18 (3 ) ofI. D. Act. Interms 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. 496 in waitlist of Zonal Office, Chennai . So far 357 wait listed temporary candidates, out of 744 waitlisted 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 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 categories 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 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 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 extendedupto 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 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 of744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was waitlisted at496 he was not appointed. The said settlements were bona fide which were the only workable solution and isbinding 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 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 settlenient drawn under provisions of Section 18 ( 1 ) and 18 ( 3 ) of I. D. Act in lieu ofprovisions of law. retrenchiment and implemented by Respondent/Bank.

5426

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC . 3 (ii) ]

7. In these circumstances , the points for my consideration are :-

(i) "Whether the demand of the Petitioner in Wait List No. 496 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 :

of bank level seulements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not applyto Respondent/Bank and the Tribunal has nojurisdiction 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 has to be filled up against the wait list drawn for appointment of daily wages / casual labour. Further, for circle of Chennai wait list ofdaily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary cmployees .After the expiry of wait list , the Petitioner has no claim for permanent absorption. Hence, for all these rcasons, 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 by Employment 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 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 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 the workmen concernedandwhile 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 offinal 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 retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

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 Staff Federation werd 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 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.

9. On belialf 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. employees at branches/offices are not allowed to be in service 5427 [ भाग II- खंड 3 (ii) ]

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe Madras circle since the High Court order is there, but he has not produced any document in support ofthe 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 Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 inW. 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 paid wages 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 and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly 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 attempt 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 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 industrywise settlement, it is not so in the case of casuals . Therefore , both belong 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 of absorption. Therefore, it is violative of Article 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M10 namely 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 , 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 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 .M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at 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 theRespondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at 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 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 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank of India Vs. S. Satyam and Others the Supreme Courthasheld that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 workmen. 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 onbehalfofthe 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 of the settlements on absorption and which are statutory in character. Further, a combined study of Ex. M1 and the averments of MW1 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 hisfuture with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of A, Band 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 1 ( a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , 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 ofwhich 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 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 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. 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. M1 , M3 and M4 respectively.

5428

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929

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 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 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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I. D. Act . It is further contended on behalf ofthe Petitioner that though some of the Petitioners inthe connected I. 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 a period of 12 calendar months . He also relied on the rulings reported in 1985 II 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 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 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 . 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 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.

10. But , 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 ofthe 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 arc 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 bona fide and are inade 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 as he was positioned down in the seniority. The Respondent/ the time of initial appointment that their appointment was inleave vacancy. Further, even before or after the settlement onabsorption 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 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 SastryAward are also violated . Further , the representative ofthe Petitioner relied on the rulings reported in 1985 4 SCC201 H. D. Singh Vs. Reserve Bank of India and other wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them ofthe status and privileges ofpermanent workmen is illegal. " Learned representative further contended that Ex. M10 waitlist 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 listunder 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, but in utter violation and in breach of it . Though clause 2(e) ofEx. 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 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 to show how he has arrivedat the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of theaverment and also for the averment of MW1 . Therefore , thetermination of the Petitioner who was in regular service ofthe Respondent/Bank is arbitrary, mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlenient on absorption of temporary employces. Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of nunutes ofconciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 ( 3 ) settlement hor 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 and M11 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 ycar 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 marked as Ex . MI to M5 . Above all, though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it 5429 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खड 3( ii ) ]

reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State ofRajasthan and Otherswherein 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 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 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, 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 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 workmanwithwait 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. 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 behalf of the Petitioner it iscontended that mere wording of reference is not decisive inthe matter oftenability 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 matter of tenability of a reference . Even though the Tribunal cannot go beyond the order ofreference , ifpoints 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 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 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs : Industrial Tribunal & Ors . wherein 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 bona fide 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 iş 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 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 claim of 11 workmen 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 conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 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 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 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 obsence 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 I LLJ 308 K.C.P. Ltd. Vs.Presiding Officer and Others wherein the Supreme Court has lield 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 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 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 workmen also. " He further relied on the rulings

3287G1/07-39 5430

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929 [PART II- SEC . 3 (ii) ] theMadhya Pradesh High court has held that " the Tribunal cannot gobehind 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 İC 1507 Α. 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 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 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 isexpected 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 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 theback 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 .

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 letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir 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 the Respondents 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. 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 19913 SCC 47 Shankarsan 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 counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide onthe part of the Respondent/Bank in preparing the wait list, it cannotbe said that preparation of wait list was made with mala fide motive. Under such circumstances, after the expiry ofthe 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 ofof ]Haryana and Ors.Ors.Vs.Vs. PiaraPiara SingSingh 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 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 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 enteredby aback 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 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 presumptionmaybe 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 inone case, a direction was given to regularise employees who have put in one year's service as far as possible and 5431 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II-खंड 3 (ii) ]

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 I Secretary, State of Karnataka Vs. Uma Devi , the Supreme Court has held that "merely because a temporary employee or a casual wageworker 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 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 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 ofhis 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 livelihood and accepts whatever he gets. But on that ground alone, 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 another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that "unless the appointment is in terms ofthe 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 atemporary 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. " Further, in CDJ 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 ifappointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported periodofprobation would not arise . " Further , in CDJ 2006 SC395 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. 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 inviolation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. SC . Pandey wherein the Supreme Court has held that "only because an employee had worked for more than 240 days subject to fulfilling the qualifications, it cannot be held that in each and every case , such a direction must follow irrespective of an 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 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 II 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 ofconfirmation 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 manner or on adhoc 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 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 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 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 einployees and have 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 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 mandatory but only directory, onsufficient 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. 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 then the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the 5432

of service by that itself would not confer any legal right uponhimtobe 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 Govt. 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 decision, 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 ofhis 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 waitlist 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 thepreparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

17. 1 find much force in the contention of the learned counsel for theRespondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard topreparation of wait list and also settlements entered into betweenthe Respondent/Bank and Federation, at the time ofreference, 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 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 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 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 reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929 [PART II- SEC. 3 (ii) ] 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 Petitionér.

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, correctedandpronounced by me in the open court on this day the 31st January, 2007.)

K. JAYARAMAN , Presiding Officer Witnesses Examined :

Forthe Petitioner : WW1 Sri M. Chandrasekaran

WW2 SriV. $ . Ekambaram Forthe Respondent : MW1 Sri C. Mariappan

MW2 Sri C. Ramalingam Documents Marked:

Ex. No. Date Description

WI 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

W2 20-04-88 Хегоx copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex.M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy ofthe circular letter ofZonal Office, Chennai about filling up of vacancies of messenger posts.

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

5433 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 (ii ) ]

Description

Ex. No. Date

Description

Feb. 2005

W27

W8 Nil

Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 ofMadurai Circle .

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work.

W28 13-02-95

W9 25-09-84

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel ofwait list.

Xerox copy of the service certificate issued by Velacheri Branch.

W10 01-08-85

09-11-92

W29

Xerox copy of the service certificate given by Saligramam branch of Respondent/Bank .

Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

08-08-88 .

W11

W30 09-07-92

Xerox copy of the service certificate issued byNaganallur branch .

Xerox copy ofthe minutes of the vipartite meeting.

W12 08-08-88

09-07-92

W31

Xerox copy of the service certificate issued by Saligramam branch.

W13 29-04-89 Xerox copy of the service certificate issued by Anna Nagar Branch .

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. 06-07-89

W14

W32 07-02-06

Xerox copy of the service certificate issued by Nanganalur Branch.

10-07-89

W15

Xerox copy of the service certificate issued by Madras Harbour Branch.

Xerox copy of the local Head Office circular about . Conversion ofpart time employees and redesignate them as general attendants.

27-06-90

W16

31-12-85

W33

Xerox copy of the service certificate issued by Park Town Branch.

21-07-90

W17

Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

Xerox copy of the service certificate issued by Anna Nagar Branch.

For the Respondent/Management:

25-10-91

W18

Xerox copy of the service certificate issued by Park Town Branch.

Date

Ex. No.

Description

Nil

W19

Xerox copy of the settlement .

MI 17-11-87

Xerox copy of the settlement.

16-07-88

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

Xerox copy of the settlement.

27-10-88

W20 Nil

Хегоx copy of the settlement .

09-01-91

Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

Xerox copy of the settlement.

30-07-96

06-03-97

W21

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings.

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

M7 28-05-91

06-03-97

W22

Xerox copy of the order in W.P. No. 7872/91 .

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa. 06-03-97

W23

M9 10-07-99

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velumurugan.

Хетох copy ofthe order of Supreme Court in SLP No. 3082/99..

W24 17-03-97

M10 Nil

Xerox copy of the service particulars- J.Velmurugan.

Xerox copy of the wait list of Chennai Module.

26-03-97

W25

25-10-99

M11

Xerox copy of the letter advising selection ofpart time Menial-G . Pandi.

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99 .

31-03-97

W26

Xerox copy of the appointment order to Sri G. Pandi.

5434

नईदिल्ली, 23 जुलाई, 2007

का. आ. 2279.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 203/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । [सं. एल-12012/339/ 1998 - आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी NewDelhi , the 23rd July, 2007

S.O. 2279. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 203 / 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, which was received by the Central Government on 23-7-2007.

[No. L - 12012 /339/ 1998 - IR (B - I) ] AJAY KUMAR , Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K.Jayaraman, Presiding Officer

Industrial Dispute No. 203/2004

(Principal Labour Court CGID No. 26/99) [ Inthe 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 theManagement of State Bank of India and their workmen ]

BETWEEN

SriM. Ovian

:I Party/Petitioner

AND

The Assistant General :II Party/Management Manager, State Bank of India , Z. O. , Chennai

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative For the Management : M/s . K. S. Sundar, Advocates

THE GAZETTE OF INDIA: AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II-SEC. 3(ii) ]

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/339/98 - IR(B - I ) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 26/99 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 I. D. No. 203/2004 .

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri M. Ovian, wait list No. 485 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 Claim Statement 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 messenger after an interview and medical examination . He was appointed on temporary basis as IIT Chennai branch from 4-9-1981 . 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 settlement under Section 18( 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 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, В 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 format through Branch Manager of the IIT Chennai 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 tojoin at the branch where he initially worked asa class IV employee . From 4-9-1981 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in IIT Chennai 5435 भारत का राजपत्र: अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II-खंड 3 (ii) ]

branch, another advertisement by the Respondent/ Bankwas 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 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , thePetitioner 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 Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays 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 ofsettlement by which his services and number ofdays 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 25G and 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 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 thetemporaryworkmen 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 all attendant benefits .

The claim ofthe 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 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 whentheir case was espousedby 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 settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI.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. 483 in waitlist of Zonal Office, Chennai . So far 357 wait listed temporary candidates , out of 744 waitlisted 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 retrenchment provisions referred to above , cannot turn around and claim appointment . Such ofthose 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 andC. Considering their temporary service and subject to other ligibility 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 completed 30 daydays aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous blockof36 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 offdate 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 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 of744 waitlisted candidates, 357 temporary employees were appointed and since the Petitioner was waitlistedat 483 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 hisclaim is liable to be rejected . Further, the said settlements were not questionedby any union so far and the settlements 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 I. D. Act in lieu of provisions of law, retrenchment and implemented by Respondent /Bank .

5436

THE GAZETTE OF INDIA: AUGUST 11 , 2007/SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ]

7. In these circumstances , the points for my consideration are :-

① "Whether the demand of the Petitioner in Wait List No. 485 for restoring the wait list of temporarymessengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

(ii) "To what relief the Petitioner is entitled ? "

Point No. 1 :

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 correctto 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 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further, for circle of Chennai wait list ofdaily 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 .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmploymentExchange 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 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 notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad filed a Writ Petition before the Supreme Courtto protect the legal and constitutional rights of the workmen concernedand 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 final 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 retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6.Again, the Petitioner tiled 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 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 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 Petitioner prays that an award may be passed in his favour.

[ भाग II- खंड 3 (ii) ]

MW1 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 to MW1 wait list under Ex. M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard tothis 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 paid wages daily onmutual agreement basis . In such circumstances , asrightly 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 treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution ofIndia' . Further, the averment ofMW1 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 isfurther contended on behalf of the Petitioner that as perdeposition 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 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 violative of Article 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M10 namely 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 , no wait list was released/ published even after the Court order in WMP No. 11932/91 in W. P. No. 7872/91 directing theRespondent/Bank to release the list of successful candidates pursuant to the first advertisement published inThe 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 themto arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all, Ex . Ml was not produced at 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 ofthe 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 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 ofthe 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 who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 workmen. 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 connectionwith the implementation of the settlements on absorption and which are statutory in character . Further , a combined study ofEx . Ml and the averments of MW1 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. Ml deals with categorization ofretrenched temporary employees into 'A, B and C' , but this categorization of ' A, B and C' is quite opposed to the doctrine of ' last come first go ' or ' first come'--last go ' and therefore , the categorization in Clause 1 isillegal. Clause 1 (a) ofEx. Ml provides an opportunity to persons who were engaged on casual basis and allowed towork in leave/casual vacancies of messengers , farashes , cashcoolies,water boys , sweepers etc. for absorption along with the other eligible categories oftemporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention of the guidelinės mentioned in Reference Book on Staff matters, copy of which is marked asEx. W8. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank'scirculars /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 weregiven 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. M10 in this case. Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 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 . M1 , M3 and M4 respectively. But, when

3287 G1/07-40 5438

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ]

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 daysand more in a continuous period of 12 calendar months as enshrined under sections 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 tobe 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 behalfof the Petitioner that though some of the Petitioners inthe connected I. 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 a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International BankingCorporation Vs. Management ofAmericanExpress 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 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 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 . 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 are in age group of40 to 50 years and for no fault of theirs, they findthemselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

[भाग II-खंड 3( ii ) ]

Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe 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 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 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 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 workmanwith 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. 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 behalfofthe Petitioner it is 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 matter of tenability of a reference . Even though the Tribunal cannot gobeyond 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 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 1998 LAB IC 1664 Van Sagnathan Orient PaperMills Vs. Industrial Tribunal & Ors . wherein the Madhya Pradesh High Court has held that "the Tribunal 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 werebona fide 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 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 1 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 claim of 11 workmen 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 conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned Counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench ofthe 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 all workmen ofthe 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 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 rulings reported in 1997 ILLJ 308 K.C.P. Ltd. Vs.PresidingOfficer and Others wherein the Supreme Court has held that " settlement 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 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 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 workmen also ." He further relied on the rulings reported in AIR 2000 SC 469 National Engineering 5440

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929 [PART II-SEC.3(ii) ] cannot gobehind 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. 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 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 consider all incidental matters also and the order of reference should not be construed in the manner which wouldprolong the industrial adjudication . The Labour Court isexpected to decide the real nature of disputes between theparties 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 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 canlook into the pleadings of the Petitioners and candecidewhether the Petitioner is entitled tobe reinstated in service as alleged by him and whether he is entitled to the backwages 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 .

discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul andOthers 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 oftheir 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 the Respondents 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. 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 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 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. 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 be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence ofa 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) novacancy 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 enteredby aback 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 upon by the High Court justify such wholesale , unconditional orders, Moreover, from the mere continuation ofan 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 oneunit 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 cannot be held that in each and every case, such a direction must follow 5441 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3( ii) ]

15. Learned Senior Advocate further argued that even in recent 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 wageworker 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 original appointment was not madeby 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 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 ofhis 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 livelihood and accepts whatever he gets. But on that ground alone, 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 another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that "unless the appointment is in terms ofthe 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 atemporary 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 . " Further, in CDJ. 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 confirmationof anemployee upon the expiry of purported periodofprobation 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 ofthe Respondent was not in sanctionedpost . 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 Articles 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 employee had worked for more than 240 days of service by that itself would not confer any legal right upon him tobe regularised in service . " The Supreme Court also held that " the changes brought about by the irrespective of an 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 Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II 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 ofconfirmation 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 irregularlyappointed candidate would arise , ifthe candidate concerned is appointed in an 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 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 they have only appointed in leave vacancies andtherefore , 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 daily wages . Under these circumstances , 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 dailywage 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) 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 mandatory but only directory, onsufficientgrounds shown, the employer is permitted to 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 juniors were made permanent by the Respondent/ 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 then 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 costs. i 5442

THE GAZETTE OF INDIA: AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II- SEC. 3 (ii)]

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 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, corrected and pronounced by me in the open Court on this day the 3 1st January , 2007. )

K. JAYARAMAN, Presiding Officer

Witnesses Examined :

Forthe Petitioner : WWI Sri M. Ovian WW2 Sri V. S. Ekambaram

For the Respondent : MWI Sri C. Mariappan MW2 Sri C. Ramalingam

Documents Marked:

Ex. No. Date Description

W1 01-08-88 Хегохx copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-04-88 Хегох copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/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. 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 thetime 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 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, 1 find the Petitioners cannot now question the settlementsat 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 cannot claim for reinstatement or regularisation in services ofthe Respondent/Bank .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

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 same relief.

W6 15-03-97 Xerox copy of the circular letter ofZonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent /Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office /branches to domessengerial work.

[ भाग II-खंड 3( ii ) ]

Ex. No. Date

Description

W9 25-07-83 Xerox copy of the service certificate issued by IIT Chennai branch .

W10 07-01-86 Xerox copy of the service certificate givenby Guindy branch.

W11 19-2-96 Xerox copy of the service certificate issued by IIT Chennai branch .

W12 Nil

Xerox copy of the administrative guidelines in reference book on Staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

W13 Nil

Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95 .

W14 06-03-97 Xerox copy ofthe call letter from Madurai ZonalOffice for interview of messenger post-V. Muralikannan .

W15 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-K. Subburaj .

W16 06-03-97 Xerox copy ofthe call letter from Madurai ZonalOffice for interview of messenger post-J. Velmurugan .

W17 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

W18 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W19 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

Feb. 2005

W20

Xerox copy of the pay slip ofT. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

W21 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list. 9-11-92

W22

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff.

09-07-92

W23

Xerox copy ofthe minutes of the Bipartite meeting.

09-07-92

W24

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of parttime general attendants .

07-02-06

W25

Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

31-12-85

W26

Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

5443

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929:

For the Respondent/Management:

Date

Ex. No.

Description

M1 17-11-87 Xerox copy of the settlement .

M2 16-07-88 Xerox copy of the settlement .

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

09-01-91

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings .

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91 .

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil Xerox copy of the wait list of Chennai Module.

25-10-99

M11

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99 .

नई दिल्ली, 23 जुलाई , 2007

का. आ. 2280.- औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 207/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । [सं. एल-12012/343/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 23rd July, 2007

S. O. 2280.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 207/ 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 , which was received by the Central Government on 23-7-2007 .

[No. L- 12012/343/ 1998 -IR (B - I) ] AJAY KUMAR, Desk Officer 5444

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929 [PART II-SEC. 3 (ii)] ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman , Presiding Officer

Industrial Dispute No. 207/2004

(Principal Labour Court CGID No. 30/99)

[Inthe matter of the dispute for adjudication under clause (d) ofsub- 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]

BETWEEN

Sri G. Kamalanathan

:IParty/Petitioner

AND

The Assistant General

: II Party/Management

Manager, State Bank of India, ZonalOfficer, Chennai

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative

FortheManagement : M/s. K. S. Sundar, Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/343/98 - IR(B - I ) dated 3-2-1999 has. referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 30/99 and issued notices to both parties. Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution ofthis 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. 207/2004 .

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the worknian Shri G. Kamalanathan, wait list No. 482 for restoring the wait list oftemporary 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 Claim Statement are briefly as follows :-

The Petitioner was sponsored by Employment Exchange for the post ofsub - staff in Class IV cadre inStateBank of India and he was given appointment

as messenger after an interview and medical examination. He was appointed on temporary basis asGuindy branch from 4-1-86. During 1985-86 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 ofWrit Petition filed by State Bank Employees ' Union in Writ PetitionNo. 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 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 temporaryworkmen 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 be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of Guindy. 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, thePetitioner was informed orally tojoin at thebranch where he initially worked as a class IV employee . From 4-1-86, the Petitioner has been working as a temporary messenger and some times performing work in other branches also. While working as such, another advertisementby the Respondent/Bank was made regarding casual workers who were reported tobe in service during the same period. While the Petitioner was working at Thousand light branch , 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 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 Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays 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 ofsettlement by which his services and number ofdays 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 5445 भारत का राजपत्र: अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खंड 3 ( ii ) ]

service is unjust and illegal . Further, the settlements are repugnant to Section 25G and 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 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 ofrelevant provisions of circular . The Respondent/ Bankengaged the Petitioner and extracted the same work either by payment ofpetty cash or by directing himto work under assumed name or by bothwhich 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 .

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 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 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 date was extendedupto 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 implemented the voluntary retirement scheme and even the permanent vacancies stand bstantially 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 aforesaid settlements out of744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 482, he was not appointed . The said settlements were bona fide which were the only workable solution and isbinding 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 ofbank 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 to entertain such plea . It is not correct to saythat 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 31-12-94were 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 ofdaily wages / casual labour. Further, for circle of Chennai wait list ofdaily wageswas 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.

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 messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore, the 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 I. D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim ofthe 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 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, 16-7-88, 7-10-88, 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) 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 wait listed as candidate No. 482 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 retrenchment provisions referred to above, cannot turn around and claim appointment . Such ofthose temporary employees who were appointed were engaged for more number ofdays and hence , they were appointed.

3287 Gl/07-41 5446

THE GAZETTE OF INDIA: AUGUST 11 , 20/07/ SRAVANA 20, 1929 [PART II-SEC. 3 ( ii) ]

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 beer tinterviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice den led anopportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 bef fore the labour authorities and they questioned the ret renchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

unc 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 ter no circumstances , wait listed persons like the Petiti oner be engaged even in menial category, thus, the Respo , ident/Bank imposed total ban for his future employ nent . Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vaca ncies by the wait listedworkme u with ulterior motive . The Respondent/Bank has been arbitra. y filling up the vacancies with the persons other thanwait 1. sted workmen according to their whims and fancies .Hence , the Petitioner prays that an award may be passed in his fav vur.

6.Again, the Potitioner filed a rejoinder to the Counter Statement of the Re spondent , 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 1.8(3 ) of the Act . As per recruitment rulesofthe Respon d ent/Bank, recruitment of class IV staff in the Responder t/Bank is in accordance with the instructions laid down under codified circula rs of the Respondeat/Bank ven in the WritPetition before the High Court in WP. No 71 72 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 nry consideration are

(i) "Whether the demand of the Petitioner in Whit List No. 482 for restoring the wait list of tenfporary mes sengers in the Responder 1/Bank and commequential appointment thereu porn as temporary mess.enger is justified ?"

(ii) " To what relief il re Petitioner is entitled ? "

Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended thatthe Petitioner in this case and the Petitio aers in the connected industrial disputes have been sponsored by Employment Exchange and they having ben calle i for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Elank in permanent vacancies in subordinate cadre orn temporary basis.After engaging then intermittently for some years , the Petitioner in this case and other Petiticiners 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 Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concemedand 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 offinal hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been

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 is'sued by the Respondent/Bank from time to time and f'urther, the same guidelines carry the procedure for 1regularisation 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 employees atbranches / 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 I.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 messengera and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only 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 workmen. 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 onbehalf of the 'Petitioner that Exts . 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 of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . Ml and the averments of MW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex. M1 deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of 'A, B and C ' is quite opposed to the doctrine of ' last 5447 भारत का राजपत्र: अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 (ii) ]

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 violative of Articles 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M10 namely wait list is not inconformity with the instructions ofEx . 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. 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 . M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list. Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997- 98 held 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 to 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 appointmentwas 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) ofthe I. D. 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 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 that " to 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 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 priorityave priority over those who joined the service later 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 , but in utter violation and in breach of it . Though clause 2 (e) of Ex. M4 states that candidates found suitable for permanent appointmentwill 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 will be deemed to have refused it and the name shall stand deleted from the come-first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal. Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , 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 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/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 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 each module as per Ex . M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 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. M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe 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 MW1 wait list under Ex. M10 was prepared on 2-5-92 but there is no pleading in the Counter 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, 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 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 treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further, the averment of MW1 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 . It is further contended on behalf of the Petitioner that as perdeposition 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 casuals .

5448

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II-SEC. 3 (ii)]

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 -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 are in age group of40 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.

respective panel and he shall have no further claim for being considered for permanent appointment in the bank. TheRespondent/Bank has not produced any document to show how he was 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 averment of MW1. Therefore , the termination ofthe 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 settlement on absorption of temporary employees . Though the Respondent/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 onlywith regardto modifications of Ex. MI to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Exts .M7 andM11 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- exantination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. Ml 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 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 daysand more in a continuous period of 12 calendar months as enshrined under sections 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 oftheRespondent/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 I. Ds have not completed 240 days , since the Respondent/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 . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management ofAmerican 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 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 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

10. But, 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 ofthe 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 Sections 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 bona fide 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 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 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 werebona fide 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 questioned by anyunion 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 claim of 11 workmen 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 ofplea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench ofthe Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority 5449 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II- खंड 3 (ii) ]

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. 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.

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 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 rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.PresidingOfficer and Others wherein the Supreme Court has held that " settlement 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 ) . Asettlement of the first category has 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 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 contestingworkmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the freewill ofthe 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 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 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 same.

12. But, as agairist this on behalf of the Petitioner it iscontended that mere wording of reference is not decisive inthe matter oftenability 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, Kollamwherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenabilityofa 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. " 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 of refusing to answer the reference on merits . " Further, he argued that the Tribunal hasgot 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 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal cannotgo behind the terms of reference , but that does not mean that it cannot look into the pleadings ofparties . " He also relied on the rulings reported in 1998 LABIC 1507 Α. 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 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 consider all incidental matters also and the order of reference should not be construed in the manner which wouldprolong 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 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 have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and candecide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to theback 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 .

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC. 3 ( ii) ] 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 ? 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 settlement .

[भाग II-खंड3(ii) ]

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 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 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 dailywage employees and have no right to the posts, their disengagentent 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 I.D.Act retrenchment procedure following principle of 'last come- first go ' is not mandatory but only directory, onsufficientgrounds 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 thathis juniors were made permanentby the Respondent ' 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 costs.

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 atemporary 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 . " Further, in CDJ 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 confirmationof an employee upon the expiry of purported periodofprobation would not arise . " Further, in CDJ 2006 SC395 Municipal Council, Sujanpur Vs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment ofthe 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 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 employee had worked for more than 240 days of service by thatthat itselfwould not confer any legal right uponhimto 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 Govt. 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 , 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 ofhis 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 waït 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 thepreparation 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 theRespondent. Though in the Claim Statement, the Petitioners have made so many allegations with regard topreparationof wait list and also settlements entered into 15. Learned Senior Advocate further argued that evern in recent decision reported in 2006 4 SCC 1 Secretary, State ofKarnataka 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 ofhis 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 due process of selection as envisaged by relevant rules. It is not open to the Court to prevent regular recruitment at the instance oftemporary 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 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 . 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 ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that "unless the appointment is in terms ofthe relevant 5452

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II-SEC. 3(ii) ]

Documents Marked :

Ex. No. Date

Description

W1

01-08-88

Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

W2

20-04-88

between the Respondent/Bank and Federation , at the time ofreference, they have not questioned the settlement nor the nuinber allotted to each individual in the wait list . Further, the Petitioners have not questioned the settlement and they have not aileged that settlement was not a bonafide in nature of it has been arrived at on account of malafide, 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 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 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 reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

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 , corrected and pronounced by me in the open court on this day the 31st January, 2007. )

K. JAYARAMAN, Presiding Officer Witnesses Examined:

Forthe Petitioner WW1 Sri G. Kamalanathan

WW2 Sri V. S. Ekambaram For the Respondent : MW1 Sri R. Subramaniyan

MW2 Sri C. Ramalingam

Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex.M1.

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

W5 20-08-91 Xeгox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling thembefore 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

W9 Nil Xerox copy of the Orissa High Court judgement in OJC No. 2787/97 .

W10 Nil Xerox copy of the Supreme Court Order inSLP CC 3061/99 .

W11 30-11-85 Xerox copy of the letter from Respondent/Bank directing the Petitioner to attend interview, as sponsored by Employment Exchange.

W12 26-12-85 Xerox copy of the letter from Respondent/Bank to Petitioner regarding filling up of vacancy of Substitute messenger.

W13 21-07-86 Xerox copy of the service certificate issued to Petitoner.

W14 11-01-95 Xerox copy of the service certificate issued to Petitioner.

W15 Nil Xerox copy of administrative guidelines issued by Respondent/Bank regarding appointment of temporary Employees .

W16 31-12-95 Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

भारत का राजपत्र: अगस्त 11 , 2007/ श्राषण 20, 1929

[भाग II-खंड 3(ii) ]

Description

Date

Ex. No.

W17 Nil

Xerox copy of the Vol. III of Reference book on staff matters upto 31-12-95 .

W18 Nil

Xerox copy ofthe order in W.P. No. 7872/ 1991.

W19 28-05-91 Xerox copy of the order in WMP No. 11932 of 91 in W.P. 7872 of 91 granting interim injunction.

06-03-97

W20

5453

FortheRespondent/Management:

Description

Date

Ex. No.

Xerox copy of the settlement .

17-11-87

Xerox copy ofthe settlement.

16-07-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement.

09-01-91

Xerox copy of the settlement.

M5 30-07-96

M6 09-06-95 Хегох copy of the minutes ofconciliation proceedings.

M7

28-05-91

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

Хегохx copy of the order in W.P. No. 7872/91.

M8

15-05-98

W21 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

06-03-97

W22

Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa.

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J . Velmurugan.

W23 17-03-97 Xerox copy ofthe service particulars- J.Velmurugan.

W24 26-03-97 Xerox copy of the letter advising selection ofparttime Menial-G.Pandi.

W25 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W26 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month ofFebruary, 2005 wait list No. 395 ofMadurai Circle .

W27 13-02-95 Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel ofwait list.

W28 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W29 09-07-92 Xeroxcopy ofthe minutes ofthe Bipartite meeting.

W30 09-07-92 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 .

W31 07-02-06 Xerox copy of the local Head Office circular about conversion of parttime employees and redesignate them as general attendants.

W32 31-12-85 Xerox copy of the local Head Office circular about appointment oftemporary employees in subordinate cadre.

3287 GI/07-42

Xerox copy of the wait list of Chennai Module.

नई दिल्ली, 23 जुलाई, 2007

का. आ. 2281.- औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 218/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । [सं. एल-12012/348/1998- आई आर (बी- I ) ] अजय कुमार , डेस्क अधिकारी NewDelhi , the 23rd July, 2007

S. O. 2281. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 218/ 2004) ofthe 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, which was received by the Central Government on 23-7-2007 .

[No..L - 12012/348/ 1998- IR (B -I)] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K.Jayaraman, Presiding Officer 5454

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ] Industrial Dispute No. 218/2004

(Principal Labour Court CGID No. 56/99)

[ In the matter ofthe dispute for adjudication under clause (d) ofSub-section ( 1 ) and Sub-section 2 (A) of Section 10 ofthe Industrial Disputes Act , 1947 (14 of 1947) , between theManagement of State Bank of India and their workmen]

BETWEEN

Sri C. Subramaniam

: I Party/Petitioner

AND

: II Party/Management

The Assistant General Manager, StateBank of India, Z. O. , Chennai

APPEARANCE

Forthe Petitioner

:SriV. S. Ekambaram, Authorised Representative

For theManagement : M/s . K. S. Sunder, Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/348/98- IR(B- I) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 56/99 and issued notices to both parties. Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe constitution of this CGIT-cum -Labour Court, the said dispute has been transferred to this Tribunal foradjudication and this Tribunal has numbered it as I. D. No. 218/2004 .

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri C. Subramaniam, 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 temporary messenger is justified ? If so, to what relief the s workman is entitled ?"

3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

copy of settlement under Section 18 ( 1 ) reached betweenmanagement of State Bank ofIndia 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 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 held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager ofthe Mannady 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 orallytojoin at the branch where he initiallyworked as a class IV employee . From 1-6-1984 me Petitioner has beenworking as a temporary messenger and sometimes performing work in other branches also . Whileworking on temporary basis in Jawahar Nagar branch, another advertisement by the Respondent/ Bankwas made regarding estual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager ofthe branch informed the Petitioner orally on31-3-97 that his services are not required any more andhe need not attend the office from 1-4-97. Hence , thePetitioner raised a dispute with regard to his non- employment. Since the consiliation 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 Petitioner requested the Respondent/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/Bank took up an unreasonable stand that the service and the number ofde در 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 ofsettlement by which his services and number ofdays 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 25G and 25H of the I. D. Act . The termination ofthe 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 observed the instructions regarding 5455 भारत का राजपत्र : अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 ( ii ) ]

grant of increments , leave , medical benefits etc. to thetemporaryworkmen which amounts 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 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 .

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 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 implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was dueto 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 listed at 516 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 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 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 oftemporary 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 wageswas 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 .

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 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 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 employment. Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank 4. As against this , the Respondent in its Counter Statement allegeded 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 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 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 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 , 16-7-88 , 7-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) 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 wait listed as candidate No. 516 in wait list ofZonal Office, Chennai . So far 357 waitlisted temporary 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. 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 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 (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 completed 30 days aggregate temporary service 5456

[PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929

for reinstatement with back wages and other attendant benefits .

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 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 false toallege 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. 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 :

9. On behalf of the Petitioner, it is contended that these 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 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 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 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 who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only for the benefit ofthe workmen 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 workmen. Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right forappointment is untenable . It is further contended that onbehalf 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 froin 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 ofMW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw deal tothe Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex. Ml deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B and 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 1 (a) ofEx . 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 , 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 ofthe relevant guidelines/ circulars of the Respondent/Bank inpermanent vacancies in subordinate 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 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 Courtto 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 filed it before the Supreme Court at the time offinal 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 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed 5457

भारत का राजपत्र अगस्त 11, 2007/श्रावण 20, 1929

[भाग II- खंड 3 (ii) ]

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. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published inThe Hindu dated 1-8-88 . Furthermore , wait list underEx. 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 ofinstructions and ceased to have the credibility attached to the wait list. Above all, Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held 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 before or afterthe 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 Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which isstill 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 201 H. D. Singh Vs. Reserve Bankof India and Others wherein the Supreme Court has held that "to 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 workmen is illegal. " Learned representative further contended that Ex. M10 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 who joined the service later 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, but in utter violation and inbreach 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 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 . TheRespondent/Bank has not produced any document to 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 documentaryevidence in support of the averment and also for the averment of MW 1. Therefore, the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ copyofwhich 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 casuals along with theeligible 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 amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have tobe prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 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. M1 , M3 and M4 respectively. But, when MW1 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 to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter 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, 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 perper Bipartite Settlement 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 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 of Constitution of India. Further, the averment of MW1 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 . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex. M10comprises 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 of absorption. Therefore , it is violative of Articles 14 and 16 of Constitution of India . Therefore, the Petitioner contended that preparation of Ex. M10 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 5458

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20, 1929 [PART II-SEC. 3 (ii) ]

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

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 onlywith regardto modification of Exs. M1 to M4 made in terms ofEx.Ex.M6.M6. Though the Respondent/Bank produced Exs. M7 and M11 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 marked as Exs . Ml 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 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 andmore 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 continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I. D. Act. It is further contended on behalfof the Petitioner that though some of the Petitioners in the connected I. De have not completed 240 days, since the Respondent/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. He also relied on the rulings reported in 1985 II 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 workedunder 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 ofthe 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 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. 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 ofwait lists and out ofthese 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 fault of theirs, they

10. But, as against this, the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government erf is not maintainable in view ofthe facts and cireumstances 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 Petitionersare estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 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 bona fide and are madewith ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length ofhis 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 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 bona fide 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, 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 anyunion 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 claim of 11 workmen 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 ofplea that the settlement reached in the course ofconciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned Counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 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 unionwill be binding on all workmen ofthe establishment , even those whobelong 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 an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional 5459 भारत का राजपत्र अगस्त 11 , 2007/श्रावण 20, 1929

[भाग II-खंड 3 ( ii) ]

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 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 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 second category made with a recognised majorityunion has extended application as it will be binding on all workmen of the establishment . Even in case ofthe first category, if the settlement was reached with a 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 AIR 2000 SC 469 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 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 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 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 same.

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 reliefprayed 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/ 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 . 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 .

5460

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929

3 (ii ) ]

[PART II-SEC .

Bank, I find the Petitioner is not entitled to question the settlement.

tothe existence of a vacancy. The direction in effect means that every adhoc/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 Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby a back door, (c) he was not eligible and qualified forthepost 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 mere continuation ofan adhoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumptionmaybe justified only when such continuance extends to several years. Further , there can be no rule of thumb in such matters . Conditions and circumstances of oneunit 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 an 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 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 oflower Courts . He further relied on the decision reported in 1997 II 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 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 adhoc 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 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 SCC 3657 Himanshu Kumar Vidyarthi &Ors . Vs. State of Bihar and Ors . wherein the Supreme Court has held that " they are temporary employees working 5461 भारत का राजपत्र: अगस्त 11 , 2007/ श्रावण 20, 1929

[ भाग II-खंड 3(ii) ]

on daily wages. Under these circumstances , 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 , their disengagement is not 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 I.D. Act retrenchment procedure following principle of 'last 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 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 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 costs.

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 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 confirmationof an employee upon the expiry ofpurported period ofprobation 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 ofthe 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 Articles 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 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 tothe 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 settled legal position, as noticed hereinbefore . "

17. I find much force in the contention ofthe learned counsel for the Respondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard topreparation 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 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 bona fide in nature or it has been arrived at on account of mala fide , misrepresentation, fraud or even corruption or 15. Learned Senior Advocate further argued that even in recent 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 ofhis 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 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 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 ofhis employment . He accepts the employmentwith 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 . 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 ofpublic 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. Ithas to be clarified that merely because atemporary 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

3287 GI /07-43 5462

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929

[PART II-SEC. 3( ii )]

Ex. No. Date

Description

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies.

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 cannot claim for reinstatement or regularisation in services ofthe Respondent/Bank .

01-05-91 Xerox copy of the advertisement in The Hindu on dailywages based on Ex. W4 .

W5 20-08-91 Xerox cony ofthe advertisement in The Hindu extending period of qualifying service to daily wagers.

18. Further, the representative for the Petitioner contended that in a similar case , 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 same relief.

15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Referenee book on staff about casuals not to be engaged at, office/branches to domessengerial work.

24-05-88 Xerox copy of the service certificate issued by Mannady Branch .

Point No. 2 :

W10 15-07-89 Xerox copy of the service certificate issued by Shastri Nagar Branch .

The next point to be decided in this case is to what relief the Petitioner is entitled ?

W11 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre& service conditions .

W12 Nil

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 Petitioner is not entitled to any relief as claimedby him. No costs .

Xerox copy of the Reference book on Staff matters Vol. III consolidated upto 31-12-95.

W13 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

21. Thus, the reference is answered accordingly. (Dictated to the P.A. , transcribed and typed by him, correctedandpronounced by me in the open court on this daythe 31st January, 2007.)

K. JAYARAMAN, Presiding Officer

Witnesses Examined :

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

For the Petitiondr : WW1 Sri C. Subramaniam WW2 Sri V.S. Ekambaram

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan.

Forthe Respondent : MW1Sri C. Mariappan MW2 Sri C. Ramalingam

W16 17-03-97 Xerox copy of the service particulars- J. Velmurugan .

Documents Marked:

Ex. No. Date

Description

W17 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

W1 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

W18 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W2 20-04-88 Хегоx copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1.

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month ofFebruary, 2005 wait list No. 395 ofMadurai Circle.

5463 भारत का राजपत्र: अगस्त 11 , 2007/श्रावण 20, 1929

[ भाग II-खंड 3 (ii) ]

Ex. No. Date

Description

अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 219/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । W20 13-02-95 Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel ofwait list .

[सं. एल-12012/347/1998- आई आर ( बी- I ) ] अजय कुमार , डेस्कअधिकारी

NewDelhi, the 23rdJuly, 2007

W21 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

W22 09-07-92 Xeroxcopy of the minutes ofthe Bipartite meeting.

S. O. 2282. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 219/ 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, which was received by the Central Government on 23-7-2007.

W23 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants.

[No. L- 12012/347/1998- IR (B-I) ] AJAY KUMAR, Desk Officer

ANNEXURE

W24 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

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

Wednesday, the 31st January, 2007 W25 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

PRESENT

For the Respondent/Management:

K.Jayaraman , Presiding Officer

Description

Date

Ex. No.

Industrial Dispute No. 219/2004 MI

Хегох copy of the settlement,

17-11-87

(Principal Labour Court CGID No. 57/99) Xerox copy of the settlement.

16-07-88

Хегоx copy of the settlement .

27-10-88

Xerox copy of the settlement .

09-01-91

[In the matter of the dispute for adjudication under clause (d) ofSub-section ( 1 ) and Sub-section 2(A) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen] M5

Xerox copy of the settlement.

30-07-96

BETWEEN

: I Party/Petitioner

Sri P. N. Gunaseelan

M6 09-06-95 Хегох copy ofthe minutes ofconciliation proceedings .

AND

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91 .

: II Party/Management M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa.

The Assistant General Manager, StateBank of India , Z. O. Chennai

APPEARANCE

10-07-99 Xerox copy ofthe order of Supreme Court in SLP No. 3082/99.

Forthe Petitioner

M10 Nil

: Sri V. S. Ekambaram, Authorised Representative Xerox copy of the wait list of Chennai Module.

For the Management : M/s . K. Veeramani , Advocates

AWARD

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99 .

नई दिल्ली , 23 जुलाई, 2007

The Central Government, Ministry of Labour vide Order No. L- 12012/347/98 - IR(B - I) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 57/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and counter statement respectively.

का. आ. 2282.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक 5464

THE GAZETTE OF INDIA: AUGUST 11 , 2007/SRAVANA 20, 1929 [PART II- SEC. 3 (ii)] After the constitution ofthis 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. 219/2004 .

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri P. N. Gunaseelan, wait list No. 702 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, towhat relief the said workman is entitled ?"

3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

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 Petitioner requested the Respondent/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/Bank took up an unreasonable stand that the service and the number ofdays 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 ofdays 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 25G and 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 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 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 all attendant benefits .

[ भाग II-खंड 3 (ii) ]

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 ofdaily wages/ casual labour. Further,for circle of Chennai wait list ofdaily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees. Afterthe 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.

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 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 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 ofthe Petitioner in Wait List No. 702 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 ?" when their case was espoused by State Bank ofIndia 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 settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3) ofI. 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 wait listed as candidate No. 782 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 retrenchment provisions referred to above, cannot turn around and claim appointment . Such ofthose temporary employees who were appointed were engaged for more number ofdays 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 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 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 date was extendedupto 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 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 of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 782 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 hisclaim 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 the 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 correctto say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 5466

THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II-SEC: 3 ( ii) ] 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 interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars ofthe Respondent/Bank inpermanent vacancies in subordinate 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 notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Unionhad 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 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. M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlem as it is not binding on them on the grond that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice deniedanopportunity 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 .

Courthas held that Chapter V- A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit ofthe workmen 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 workmen. 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 onbehalfof the Petitioner that Exts . 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 of the settlements on absorption and which are statutory in character . Further, a combined study of Ex . Ml and the averments ofMW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has givena raw deal to the Do woner from the beginning unking his future with the settlements . Further, Clause 1 ofEx. Ml deals with categorization of retrenched temporary employees into ' A, B and C ' , bút this categorization of 'A, B and C ' is quite opposed to the doctrine of ' last come- first ' or ' first come - last go ' and therefore , the categorization in Clause 1 is illegal. Clause 1 (a) of Ex. M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , 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 on Staff matters , copyofwhich ismarked 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/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 amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex. W2 four types ofwaiting lists have tobe prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 inthis case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to says as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex. M10 that it was preparedbased on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Exts . M1 , M3 and M4 respectively. But , when MW1 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 to MW1 wait list under Ex. M10 was prepared on 2-5-92 but there is no pleading in the Counter 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 , in 5467 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II-खंड 3 (ii) ]

ofthe 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 that " to employ workmen as ' badlies ' casttals or temporaries and to continue them as such for many years with the object of depriving them ofthe status and privileges of permanent 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 candidateswith longest service should have priority over those who joined the service later 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, 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 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 to 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 the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service oftheRespondent/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 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 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 and M11 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/ Management has examined two witnesses , the deposition ofmanagement witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. Ml toM5 . 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 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 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 continuous service ofthe Respondent/Bank and they are entitled to the benefits which it is stated that ' it is clear that the 1987 settlement was concernedwith 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 mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list ofcandidates 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 of Constitution of India. ' Further, the averment of MW1 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 . It is further contended on behalf of the Petitioner 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 industrywise settlement, it is not so in the case of casuals . Therefore , both belong 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 of absorption . Therefore, it isviolative ofArticles 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M10 namely 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 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. 7872/91 directing the Respondent/Bankto 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 pafticulars about the candidates date of initial appointment and the number of days put in by them to arrive at their espective seniority. From all these things, it is clear that Ex. MIU Nas 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 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 before or after the settlement onabsorption oftemporary 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 I. D. 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 Sastry Award are also violated . Further , the representative 5468

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC . 3(ii )] under the provisions of I. 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 a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management ofAmerican 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 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 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. In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of tlements/ lapsing of wait lists and out ofthese 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 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.

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 anyunion 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 claim of 11 workmen 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 conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and others wherein the Division Bench ofthe Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwillbebinding 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 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 rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.PresidingOfficer and Others wherein the Supreme Court has held that " settlement 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 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 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 contestingworkmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will ofthe 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 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 5469 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[ भाग II- खंड 3 (ii ) ]

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, 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 same.

Newspapers P. Ltd. case reported in AIR 1993 SC 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 isexpected 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 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 fromthe 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.

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. 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.

3287 G1/07--44 5470

THE GAZETTE, OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II-SEC. 3(ii)]

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 questionofconfirmation of these employees whose entry itselfwas illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularlyappointed candidate would arise , ifthe candidate concerned is appointed in an 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 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 they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption inthe Respondent/Bank. Further, he relied on the rulings reported inAIR 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 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 dailywage 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 ) 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 mandatory but only directory, onsufficient 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 hisjuniors were made permanent by the Respondent/ Bank. Anyhow, ifthe Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days then 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 costs.

6-2-98, we are of the opinion that the Respondents did not get any right because of inclusion of their names in the saidpanel 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, thelearned 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 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 mala fide onthe part ofthe Respondent/Bank in preparing the wait list, it cannotbe said that preparation ofwait list was made with mala fide motive. Under such circumstances, after the expiry ofthe 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. 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 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 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 enteredbya back door, (c) he was not eligible and qualified for the post at the time of his appointment; (d) his recordof service since his appointment is not satisfactory. These are the additional problems indicatedby 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 ofan 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 oneunit 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 an 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 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 II SCC 1 Ashwani Kumar and Others Vs.

[ भाग II- खंड 3( ii) ]

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 ofwait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

18. Further , the representative for the Petitioner contended that in a similar case, 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 same relief.

Point No. 2:

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 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 ofhis 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 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 ofpublic 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 it has to be clarified that merelybecause appointee. 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 . " Further, in CDJ 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 an employee upon the expiry ofpurported period ofprobation 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 . 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 Articles 14 and 16 of the Constitution of India would be void in law. " Further , in 2006 2 LLN 89 Madhya Pradesh StateAgro 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 Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

The next point to be decided in this case is to what relief the Petitioner is entitled ?

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner 5472

THE GAZETTE OF INDIA: AUGUST 11 , 2007/ SRAVANA 20, 1929 [PART II- SBC. 3 (ii ) ]

Ex. No. Date

Description

W11 20-01-93 Xerox copy of the service certificate issued by Overseas Branch .

W1221-01-95

20. In view of ny 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 entitied to any relief as claimed by him. No costs.

Xerox copy of the service certificate issued by Overseas Branch.

W13 23-10-97

21. Thus , the reference is answered accordingly.

Xerox copy of the service certificate issued by Overseas Branch .

W14 26-07-89

(Dictated to the P.A. , transcribed and typed by him, corrected and pronounced by me in the open court on this day the 31st Januaгу, 2007.)

Xerox copy of the call letter for interview from the Respondent/Bank.

W15 Nil

K. JAYARAMAN , Presiding Officer

Witnesses Examined:

For the Petitioner

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/ Bank regarding recruitment to subordinate cadre and service conditions .

:WWI Sri P.N. Gunaseelan WW2 Sri V.S. Ekambaram

W16 Nil

For the Respondent :

Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

MMWI Sri C. Mariappan MW2 Sri C. Ramalingam

W17 06-03-97

Documents Marked:

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

Ex. No. Date

Description

W18 06-03-97

WI 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex .M1 .

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W19 06-03-97

20-04-88 Xerox copy of the administrative guidelines issued by Responuent/Bank for implementation of Ex.M1 .

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

W20 17-03-97

24-04-91

Xerox copy of the service particulars-- J.Velmurugan.

W21 26-03-97

Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies.

Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

Wi4 01-05-91

W22 31-03-97

Merox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

Xerox copy of the appointment order to Sri G. Pandi .

W5 20-08-91

W23 Feb. 2005

Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

Xerox copy of the pay slip of T. Sekar for the month ofFebruary, 2005 wait list No.395 ofMadurai Circle .

W6 15-03-97

W24 13-02-95

Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messengers posts .

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W25

25-03-97

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 circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

Xerox copy of the minutes of the Bipartite ineeting.

W8 Nil

W27 09-407-92

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office /branches to domessengerial 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 .

12-05-86 Xerox copy of the service certificate issued by Overseas Branch.

W28 07-02-06

W10 16-06-88 Xerox copy of the service certificate issued by Overseas Branch .

Xerox copy of the local Head Office Circular about conversion of part time employees and redesignate them as general attendants .

5473 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 (ii ) ]

ANNEXURE

Description

Date

Ex. No.

31-12-85

W29

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

Xerox copy of the local Head Office Circularabout appointment oftemporary employees in subordinate cadre .

Wednesday, the 31st January, 2007

Forthe Respondent/Management:

PRESENT

Description

Date

Ex. No.

K.Jayaraman, Presiding Officer

Xerox copy of the settlement.

17-11-87

Industrial Dispute No. 204/2004

M2 16-07-88 Xerox copy of the settlement .

(Principal Labour Court CGID No. 27/99) M3 27-10-88 Xerox copy of the settlement.

M4 09-01-91 Xerox copy ofthe settlement .

[Inthe 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 theManagement of State Bank of India and their workmen] M5 30-07-96 Xerox copy of the settlement .

BETWEEN

:I Party/Petitioner

Sri S.Kumar

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings.

AND

M7 28-05-91 Хегох copy of the order in W.P. No. 7872/91 .

:II Party/Management TheAssistant General

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa.

Manager, StateBank of India, Z. O. , Chennai

APPEARANCE

M9 10-07-99 Xerox copy of the order ofSupreme Court in SLP No. 3082/99 .

M10 Nil

For the Petitioner :Sri V. S. Ekambaram, Authorised Representative Xerox copy of the wait list of Chennai Module.

For the Management : M/ s . K. S. Sundar, Advocates AWARD

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99.

नई दिल्ली, 23 जुलाई, 2007

The Central Government, Ministry of Labour vide Order No. L- 12012/340/98 - IR(B - I) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 27/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe constitution ofthis 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. 204/2004.

का. आ. 2283.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 204/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था ।

2. The Schedule mentioned in that order is as follows:-

[सं. एल-12012/340/1998- आई आर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 23rd July, 2007

"Whether the demand ofthe workman Shri S. Kumar wait list No. 386 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporarymessenger is justified ? If so , to what relief the said workman is entitled ?"

3. The allegations of the Petitioner in the Claim Statement arebriefly as follows:-

S. O. 2283. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 204/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of StateBank of India and their workmen, which was received by the Central Government on 23-7-2007 .

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA20, 1929 [PART II-SEC. 3 (ii ) ]

service isunjust and illegal . Further, the settlements are repugnant to Section 25G and 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 wait list has been prepared and the Respondent/Bank has been regularising according totheir whims and faneies . The Respondent/Bank has also not observed the instructions regarding grant of increments, leave, medical benefits etc. to thetemporaryworkmen which amounts to violation ofrelevantprovisions 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 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 .

examination. Hewas appointed on temporary basis atPark Town branch from 10-1-1981. 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 inthe form of Writ Petition filed by State Bank Employees Unionees Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The RespondentBank, in addition to its counter, filed a copy of settlement under section 18 ( 1 ) reached betweenmanagement 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 the workmen under three categories namely A, B and C. Though the classification was unreasonable , theRespondent/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 throughBranch Manager ofthe Park Town 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 tojoin at the branch where he initially worked as aclass IV employee. From 10-1-1983, the Petitioner has been working as a temporary messenger and some times performing work in other branches also. Whileworking on temporary basis in HO Chennai branch, another advertisement by the Respondent/ Bankwas made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Managerof the branch informed the Petitioner orally on31-3-97 that his services are not required anymore andhe need not attend the office from 1-4-97.Hence, thePetitioner 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 representationto Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number ofdays 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 ofdays 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'saction in not absorbing him in regular

5475 भारत का राजपत्र : अंगस्त 11 , 2007/ श्रावण 20, 1929

[भाग II- खंड 3 (ii) ]

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 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 workman 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 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 ofclass 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 inW. 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:-

(1) "Whether the demand of the Petitioner in Wait List No. 386 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 :

Under the settlement, employees were categories as A, В 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 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 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 filling up vacancies which were to arise upto 31-12-94. 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 of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 386 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 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 the 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 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 ofChennai 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.

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for. interview andhaving been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate 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 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 Courtto protect the legal and constitutional rights of the workmen concernedandwhile 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 offinal hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been 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 ofmessenger 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 5476

THE GAZETTE OF INDIA : AUGUST 11, 2007/ SRAVANA 20, 1929 [PART II-SEC. 3 (ii)] 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 beeninterviewed 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 andtherefore, 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.

come last go ' and therefore, the categorization in Clause 1 is illegal. Clause 1 (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 , sweepers etc. for absorption along with the other eligible categories oftemporary employees is not valid . Further, engaging casuals to domessengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters, copyofwhich 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 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 amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex . W2 four types of waiting lists have tobe prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. М10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers .Even MWI isunable 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 MW1 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 to MW1 wait list under Ex. M10 was prepared on2-5-92but there is no pleading in the Counter 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, 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 perBipartite Settlement while the 1988 settlement dealt withdailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly 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 treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India . Further, the averment ofMW1 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 bythe Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as perdeposition 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 casuals .

5477 भारत का राजपत्र : अगस्त 11 , 2007/श्रावण 20, 1929

[ भाग II- खंड 3 (ii) ]

respective panel and he shall have no further claim for beingconsidered for permanent appointment in the bank . The Respondent/Bank has not produced any documentto 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 forthe averment ofMW1 . Therefore, the termination of the Petitioner who was in regular service of the Respondent/ Bankis 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 produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Centr Hyderabad, it is neither a 18 (3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modification of Ex . M1 to M4 made in terms ofEx .M6 . Though the Respondent/Bank produced Exs.M7 andM11 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 marked as Ex. M1 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 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 daysandmore 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 continuous service oftheRespondent/Bank and they are entitled to the benefits under the provisions of I. D. Act . It is further contended on behalf ofthe Petitioner that though some of the Petitioners in the connected I.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 a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Courthasheld that the " expression ' actuallyworkedunder the employer ' cannot mean that those days only when the workmenworked 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 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 reported to have submitted 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 violative of Articles 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M10 namely 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, 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 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 themto 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. M1 was not produced at 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 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) ofthe I. 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. 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 that " to 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 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 later 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, but in utter violation and inbreach of it . Though clause 2(e) ofEx. 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 will be deemed to have refused it and the name shall stand deleted from the

3287 G1/07-45 5478

THE GAZETTE OF INDIA : AUGUST 11, 2007 / SRAVANA 20, 1929 [PART II-SEC. 3 (ii)] their application for absorption as per the bank's circular andtherefore, 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 ofwait 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 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.

unionwill 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 lawofcontracts, 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 scuttlingu settlement. " It further held that "thare 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. " Learncu counsel for the Respondent further reliedone rulings reported in 1997 ILLJ 308 K.C.P. Ltd. Vs. PresidingOfficerand Others wherein the Supreme Court has held that" settlements are divided into two categories hamely ( i ) those arrived at outside the conciliation proceedings under Section 18 (1 ) ofthe 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 arid binds merely parties to it and settlement of the second category made with a recognised majorityunion has extended application as it will bebinding on all workmen of the establishment, Even in case of the first category, if the settlement has reached with a 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 contestingworkmen also. " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State ofRajasthan and Others wherein the Supreme Court has held that " settlement is arrivedat bythe free will ofthe 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 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 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 same.

10.But, 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 inthis 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 I.D. 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 aremade with ulterior motive. Further, theyhave concealed the material facts that the Petitioner was wait listed as per length ofhis engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due tobusiness 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 as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation werebona fide which were the only warkable 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 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 claim of 11 workmen 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 ofplea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen." Learned Counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein theDivision 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

[भाग II- खंड 3 (ii) ]

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 . Further, in this case , the Court has to see whether the restoration ofwait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he shouldbe reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union ofIndia and Others Vs. K.V. Vijeesh wherein the Supreme Court has held that "the onlyquestionwhich falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis ofcompetitive examination acquires a right ofappointment in Govt . Service in an existing or a future vacancy. Inthat case , pruning of select list on reduction in number ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number 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 letter dated7-2-87 the bank informed the Respondents that thepanel wasvalid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe 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 the Respondents 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 withthe expiry ofthe 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, whenit 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 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 mala fide onthe part of the Respondent/Bank in preparing the wait list, itcannot be said that preparation of wait list was made withmala fide motive . Under such circumstances , after the expiry ofthe date namely 31-3-1997, the Petitioner cannot plead for restoration ofthe wait list and he cannot pray for 12. But, as against this on behalf of the Petitioner it iscontended that mere wording of reference is not decisive inthe matter oftenability 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 matter of tenability ofa reference . Even though the Tribunal cannot gobeyond the order of reference , ifpoints ofdifference 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 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 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference, but that does not meanthat 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 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 hasjurisdiction 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 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 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 ofthe Petitioners and candecidewhether the Petitioner is entitled tobe 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 .

5480

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA20, 1929 [PART II-SEC. 3 (ii) ]

১

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 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 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 dailywage 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) 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 mandatory but only directory, on sufficient grounds shown, the employer is permitted to 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 juniors were made permanent by the Respondent/ 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 then 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 costs .

[ भाग II- खंड 3 (ii) ]

between the Respondent/Bank and Federation, at the time ofreference , 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 settlement was not a bona fide in nature or it has been arrived at on account of malafide , 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 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 cannot claim for reinstatement or regularisation in services of the Respondent/Bank.

18. Further, the representative for the Petitioner contended that in a similar case , 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 same relief.

Point No. 2:

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 atemporary 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. " Further, in CDJ 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 ifappointment is made without following the rules , the same being a nullity, the question of confirmationofan employee upon the expiry of purported period ofprobation would not arise. " Further, in CDJ 2006 SC395 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. 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 inviolation of constitutional scheme enshrined under Article 14 and 16 of the Constitution of India would be void in law." Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro 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 uponhim tobe 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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore ."

The next pointto 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 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 relief as claimed by him. No costs.

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him, correctedandpronounced by me in the open court on this daythe 31st January, 2007.)

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 ofhis 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 thepreparation ofwait list or number allotted to them . Under such circumstances, it cannot be questioned by the Petitioner.

Witnesses Examined : Forthe Petitioner K. JAYARAMAN, Presiding Officer : WW1 Sri S. Kumar WW2 Sri V.S. Ekambaram Forthe Respondent : MW1Sri C. Mariappan MW2 Sri C. Ramalingam 17. I find much force in the contention of the learned counsel for theRespondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into 5482

THE GAZETTE OF INDIA : AUGUST 11 , 2007 /SRAVANA 20, 1929 [PART II SBC. 3( ii) ] Documents Marked:

Ex. No. Date

Description

Ex. No. Date

W20 Nil

Description

W1 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex .M1.

W2 20-04-88

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions.

W21 Nil

Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex .M1.

W3 24-04-91

Xerox copy of the Reference book on Staffmatters VoI . III consolidated upto 31-12-95.

W22 06-03-97

Xerox copy of the circular of Respondent/Bank to all branches regarding absorption of daily wagers in Messenger vacancies.

Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

W4 01-05-91

W23 06-03-97

Xerox copy of the advertisement in The Hindu on dailywages based on Ex. W4.

W5 20-08-91

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W24 06-03-97

Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan.

W25 17-03-97

Xerox copy of the circular letter of Zonal Office,ce, Chennai about filling up of vacancies of messengers posts .

Xerox copy of the service particulars- J.Velmurugan.

W7 25-03-97

W26 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi.

W27 31-03-97

Xerox 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 appointment order to Sri G. Pandi.

W8 Nil

W28 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle.

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

W29 13-02-95

W9 21-03-84 Xerox copy of the service certificate issued by Park Town Branch.

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W10

W30

15-05-86

09-11-92

Xerox copy of the service certificate issued by Park Town branch.

Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff.

W11 13-01-92

W31 09-07-92

Xerox copy of the service certificate issued by Park Town branch.

W12 Nil

Xerox copy of the minutes ofthe Bipartite meeting.

W32 09-07-92

Xerox copy of the service certificate issuedby Park Town branch .

W13 15-04-93 Xerox copy of the service certificate Issued by Saligramam branch .

W14 07-02-94

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 ofof the service certificate Issued by LHO OA Deptt . branch.

W33 07-02-06

W15 10-07-95 Xerox copy of the service certificate issued by Park Town Branch .

Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

W16 21-12-95

W34 31-12-85

Xerox copy of the service certificate issuedby Overseas Branch .

W17 24-06-98

Xerox copy of the local Head Office circular about appointment oftemporary employees in subordinate cadre.

Xerox copy of the service certificate issued by LHO OA Deptt .

Forthe Respondent/Management:

W18 24-06-98

Ex. No. Date

Xerox copy of the service certificate issued by LHO OA Deptt.

Description

W19 06-07-89

17-11-87 Xerox copy of the settlement.

Xerox copy of the interview letter from Respondent/Bank.

M2 16-07-88 Xerox copy of the settlement .

5483

भारत का राजपत्र: अगस्त 11 , 2007/श्रावण 20, 1929

[भाग II-खंड 3 (ii) ]

Date

Ex. No.

Description

Xerox copy of the settlement. 27-10-88

Xerox copy of the settlement. 09-01-91

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Xerox copy ofthe minutes ofconciliatior proceedings .

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91 .

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa.

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99.

M10 Nil 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. 1893/99.

नई दिल्ली, 23 जुलाई, 2007

का. आ. 2284.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 212/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-7-2007 को प्राप्त हुआ था । [सं. एल-12012/312/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्कअधिकारी NewDelhi , the 23rd July, 2007

S. O. 2284. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 212/ 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 , which was received by the Central Government on 23-7-2007.

[No. L- 12012/312/ 1998 -IR (B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman, Presiding Officer

Industrial Dispute No. 212/2004

(Principal Labour Court CGID No. 50/99) [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 theManagement of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner Sri K. Murugan

AND

: II Party/Management TheAssistant General Manager, State Bank of India, Z. O. , Chennai

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative For the Management : M/ s . K. S. Sundar, Advocates AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/312/98 - IR(B - I ) dated 2-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 50/99 and issued notices to both parties. Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe 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. 212/2004.

2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri K. Murugan, wait list No. 553 for restoring the wait list oftemporary messengers in the establishment ofState Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, towhat relief the said workman is entitled ?" 3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

THE GAZETTE OF INDIA : AUGUST 11 , 2007 / SRAVANA 20, 1929 [PART II-SBC. 3 (ii) ,

thetemporary 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 orby 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 .

between management of State Bank of India andAll 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 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 held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Guindy branch. He was called for an interviewby 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 tojoin at the branch where he initially worked as a class IV employee . From 7-4-1984, the Petitioner has been working as a temporary messenger and some timesperforming work in other branches also . While working on temporary basis in Guindy 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 31-3-97 that his services are not required any more and he need notattend the office from 1-4-97. Hence , the Petitioner raiseda 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 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 obtained prior 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 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 25G and 25H ofthe 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 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

भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

listedworkmanwith ulterior motive . The Respondent Bank hasbeen arbitrarily filling up the vacancies with the persons other than wait lisied workmen according to their whims and fancies .Hence , the Petitioner prays that an award may he passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the sertlements 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 Resporident/Bank , recruitment of class IV staff in the Respondent/Banik 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 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. 553 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? "

(n) "To what relief the Petitioner is entitled ? "

PointNo: 1:

aggregate temporary service in any continuous block of36 calendar months were to be considered . As per Clause 7, the length oftemporary 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 filling up vacancies which were to arise upto 31-12-94. 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 of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 549 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 his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements ofbank 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/Barik and the Tribunal has no jurisdiction to entertain 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 , vacancies upto 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 wait list for the appointment of temporary employees. After the expiry of waitlist, the Petitioner has no claim for permanent absorption. Hence, for all these reasons , the Respondent prays to dismiss the clain 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 theyhaving 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 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 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 Courtto protect the legal and constitutional rights of the workinen 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 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 asit 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 anopportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the fabour authorities and they questioned the retrenched as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benents .

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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 amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have tobe prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers. Even MW1 is unable to says 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 Exts . M1 , M3 and M4 respectively . But , when MW1 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, 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 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 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 mutual agreement basis . In such circumstances , 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 of Constitution of India . ' Further, the averment of MW1 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 . It is further contended on behalf of the Petitioner 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 paidwages 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 of absorption . Therefore, it is violative of Articles 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M10 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 projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/ 9. On behalf of the Petitioner, it is contended that these 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 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 employees atbranches / 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 VA of the I. 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 the Petitioner contended that in 1996 LAB and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit of the workme 1 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 enforceable right for appointment is untenable . It is further contended that onbehalfof the Petitioner that Exts . 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 of the settlements on absorption and which are statutory in character. Further, a combined study of Ex. M1 and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of 'A, B and 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 1 ( a ) of Ex. Ml provides an oppor unity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories oftemporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters, copyofwhich 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 5487 [ भाग II- खंड 3 ( ii) ]

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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 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 Exts . M7 andM11 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/ Management has examined two witnesses , the deposition of management witnesses during the cross - examination hadbecome apparent that they have no personal knowledge aboutthe 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 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 have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I. D. Act . It is further contended on behalf ofthe 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 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. He also relied on the rulings reported in 1985 II 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 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 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 andtherefore, 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 ofwait 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 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.

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 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 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 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 then out of the principal clause 2( 00) of the I. D. 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 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 that " to employ workmen as ' badlies' casuals or temporaries and to continue them as such for many years with the object of depriving them ofthe status and privileges of permanent 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 later 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 , 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 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 claint for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to 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 the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service ofthe Respondent/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 produced [PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA: AUGUST 11 , 2007/ SRAVANA 20, 1929

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consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.Presiding Officer and Others wherein the Supreme Court has held that " settlement 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 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 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 workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 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 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 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 in which the Petitioner is also one among them, thev 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 sanie.

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 workınanwith 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 . 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 inthe Claim Staternent .

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 Jilla Hotel and Shop Workers Union Vs. Industrial Tribunał , 10. But , 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 ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in contimous 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 Sections 1811) 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 bona fide and aremadewith ulterior motive . Further, they have concealed thematerial 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 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 heworked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement catered 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 wait listed and therefore, the Petitioner is ostopped 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 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 claim of 11 workmen and the workmen resigned from the job and reccived terminal benefits , but the workinen 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 ." Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has heid that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen ofthe 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 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 5489 [ भाग II- खंड 3 (ii ) ]

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Kollam wherein 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 gobeyond the order of reference , ifpoints of difference are discernible from the material before it, it has only onduty 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 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 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya 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 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 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 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 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 ofthe 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 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 .

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. Vijeesh 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 ofcompetitive examination acquires a right ofappointment in Govt . service in an existing or a future vacancy " . In that case , pruning of select list on reduction innumber ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number 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 letter dated 7-2-87 the bank informed the Respondents that thepanel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe 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 the Respondents did not get any right because of inclusion of their names in the saidpanel 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 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 mala fide onthe 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 ofthe date namely 31-3-1997, the Petitioner cannot plead for restoration ofthe 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. Vs. Piara Singh and Others wherein the Supreme Court has held that "now coming to the direction that all those adhoc 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) novacancy 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 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 [PART II- SBC. 3 ( ii) ] THE GAZETTE OF INDIA : AUGUST 11 , 2007/ SRAVANA 20 , 1929

5490

disengagement is not 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 theI.D. Act retrenchment procedure following principle of 'last 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 have been made permanent in banking service, he has not established with any evidence that hisjuniors were made permanent by the Respondent/ 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 costs.

notification calling for applications which means he had enteredby abackdoor ; (c) he was not eligible and qualified forthepost 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 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 ofan adhoc 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 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 . 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 orders oflower Courts. He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Biharand 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 itselfwas illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularlyappointed candidate would arise, ifthe candidate concerned is appointed in an irregular manner or on adhoc 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 vive 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, learnedcounsel 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 inthe 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 daily wages . Under these circumstances , their disengagementfrom 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 dailywage employees and have no right to the posts, their 5491 भारत का राजपत्र अगस्त 11 , 2007/ श्रावण 20 , 1929

[भाग II- खंड 3 (ii ) ]

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 reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

Point No. 2:

the rules , the same being a nullity, 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. 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 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 Articles 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 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 policydecisions of the Govt. in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident , in view of the settled legal position, as noticed hereinbefore ."

The next point to be decided in this case is to what relief the Petitioner is entitled ?

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.)

K. JAYARAMAN, Presiding Officer

Witnesses Examined :

Forthe Petitioner : WW1 Sri K. Murugan

WW2 Sri V.S. Ekambaram

For the Respondent : MW1 Sri C. Mariappan

MW2 Sri C. Ramalingam

Documents Marked:

Ex. No. Date

Description

W1 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex. M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

Ex. No. Date

Description

01-05-91

Xerox copy ofthe advertisement in The Hindu on daily wages based on Ex. W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of inessenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff abont casuals not to be engaged at office/branches to do messengerial work.

W9 07-404-84 Xerox copy of the service certificate issued by Guindy Branch .

08-03-85

W10

Xerox copy of the service certificate issued by Guindy Branch .

W11 01-04-86 Xerox copy of the service certificate issued by Guindy Branch .

03-11-92

W12

Xerox copy of the service certificate issued by Guindy Branch .

W13 08-01-94 Xerox copy of the service certificate issued by Guindy Branch.

30-03-95

W14

Xerox copy of the service certificate issued by Guindy Branch .

16-03-96

W15

Xerox copy of the service certificate issued by Guindy Branch .

W16 30-05-97 Xerox copy of the service certificate issuedby Guindy Branch .

W17 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitinent to subordinate cadre and service conditions .

Nil

W18

Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95 .

W19 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

W20 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K . Subburaj .

W21 06-03-97 Xerox copy of the call letter fromMadurai zonal office for interview of messenger post-J.Velinurugan.

[PART II--SEC. 3 (ii) ]

THE GAZETTE OF INDIA : AUGUST 11 , 2007/SRAVANA 20 , 1929

Ex. No. Date

Description

17-03-97

W22

Xerox copy ofthe service particulars- J. Velmurugan.

W23 26-03-97 Xerox copy of the letter advising election of part time Menjal -G . Pandi .

31-03-97

W24

Xerox copy of the appointment order to SriG. Pandi .

Feb. 2005

W25

Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

13-02-95

W26

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list. 09-11-92

W27

Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff .

09-07-92

W28

Xerox copy of the minutes ofthe Bipartite mecting.

09-07-92

W29

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 .

(07-02-06

W30

Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W31 31-12-85 Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management:

Ex. No. Date

Description

MI 17-11-87 Xerox copy of the settlement .

M2 16-07-88 Xerox copy of the settlement .

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

09-01-91

Xerox copy of the settlement. 30-07-96

M6 09-06-95 Xerox copy ofthe minutes of conciliation proceedings .

M7 28-05-91 Xerox copy of the order in W.P. No. 7872/91.

M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list of Chennai Module .

25-10-99

M11

Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A.. No. 1893/99 .

Printed by the Manager . Govt . of India Press , Ring Road, Maya Puri , New Delhi - 110064 and Published by the Controller of Publications . Delhi - 110054, 2007