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रजिस्ट्री सं० डी० एल० ( एन ) 04/ 0007 / 2003-05

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

जयते भारत का राजपत्र The Gazette of India

प्राधिकार से प्रकाशित

PUBLISHED BY AUTHORITY

साप्ताहिक

WEEKLY

सं. 36]

नई दिल्ली, सितम्बर 2 सितम्बर 8 , 2007 , शनिवार / भाद 11- भाद 17 , 1929

No. 36] NEW DELHI , SEPTEMBER 2- SEPTEMBER 8 , 2007 , SATURDAY/BHADRA 11 - BHADRA 17, 1929 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 compilation

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 (वित्तीय सेवाएं विभाग ) नई दिल्ली, 29 अगस्त, 2007

का.आ. 2515.- बैंककारी विनियमन अधिनियम, 1949 (1949 का 10 ) की धारा 53 ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्रीय सरकार , भारतीय रिजर्व बैंक की सिफारिशों पर , एतद्वारा , घोषणा करती है कि उक्त अधिनियम की धारा 13 के उपबंध दा डेवलपमेंट क्रेडिट बैंक लिमिटेड पर लागू नहीं होंगे ।

[फा. सं. 13/3/2007- बीओए ] डी. पी. भारद्वाज , अवर सचिव MINISTRY OF FINANCE (Department of Financial Services) New Delhi , the 29th August , 2007 S.O. 2515. In exercise of the powers conferredby Section 53 ( 1 ) of the Banking Regulation Act, 1949 (10 of 1949) the Central Government , on the recommendations of Reserve Bank of India, hereby declares that the provisions of Section 13 of the said Act , shall not apply to The Development Credit Bank Ltd.

[F. No. 13/3/2007-BOA]

D. P. BHARDWAJ , Under Secy.

3625 GI/2007

(6559)

(राजस्व विभाग )

( केन्द्रीय उत्पाद शुल्क आयुक्त, कोलकाता-III ) कोलकाता , 12 जून , 2007 सं.-2/2007-सीमाशुल्क ( एनटी )

का.आ. 2516. - सीमा शुल्क अधिनियम 1962 ( 1962 का 52 ) की धारा 9 के तहत प्रदत्त शक्तियों का प्रयोग करते हुए जिसे भारत सरकार , वित्त मंत्रालय , राजस्व विभाग , नई दिल्ली की अधिसूचना संख्या 33/94 सीमा शुल्क ( एन टी ) दिनांक 1-7-1994 तथा एम. एफ. (डी. आर. ) परिपत्र संख्या 31/2003 सीमा शुल्क दिनांक 7-4-2003 के साथ पढ़ा जाए , मैं एतद्वारा मैसर्स डब्ल्यू. पी. पी. पैकेजिंग फैक्ट्री पाड़ा कैखाली चिड़ियां मोड , पी.ओ. आर. गोपालपुर, 24- परगना ( उत्तर ) , कोलकाता -700136 में स्थित को सीमा शुल्क अधिनियम , 1962 ( 1962 का 52 ) के अन्तर्गत विकास आयुक्त, फलता विशेष आर्थिक क्षेत्र , वाणिज्य एवं उद्योग मंत्रालय , भारत सरकार, द्वितीय एम. एस. ओ. भवन चतुर्थ तल, निजाम पैलेस , कोलकाता-700020 में पत्र संख्य 2 ( 1 ) डब्ल्यू-3 /2006/3616 दिनांक 20-9-2006 की अनुमति पत्र के अनुसार सीमित प्रयोजन हेतु 100 प्रतिशत निर्यातोन्मुखी उपक्रम के रूप में भण्डारण केन्द्र घोषित करती हूं।

[सी. सं. V( 19 ) /01 /के.उ.शु./तक/कोल- III/2006/2540-41 ] श्रीमती डी. बी. दासगुप्ता, आयुक्त 6560

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929 [PART II-SEC. 3 ( ii )] (Department ofRevenue)

(क) पैराग्राफ 1 के उप-पैराग्राफ ( iii ) में उल्लिखित लेखा बही नहीं रखेगा; अथवा

(ख) पैराग्राफ 1 के उप- पैराग्राफ ( iii ) में उल्लिखित अपनी लेखा परीक्षा रिपोर्ट प्रस्तुत नहीं करेगा ; अथवा (THE COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III) Kolkata, the 12th June, 2007 No. 2/2007-Customs (NT)

(ग ) पैराग्राफ 1 के उप- पैराग्राफ ( iv ) में उल्लिखित वैज्ञानिक अनुसंधान के लिए प्राप्त एवं प्रयुक्त दान का अपना विवरण प्रस्तुत नहीं करेगा; अथवा

(घ) अपना अनुसंधान कार्य करना बंद कर देगा अथवा इसके अनुसंधान कार्य को जायज नहीं पाया जाएगा ; अथवा

(ङ) उक्त नियमावली के नियम 5 ग और 5ङ के साथ पठित उक्त अधिनियम की धारा 35 की उप- धारा ( 1 ) के खण्ड ( ii ) के प्रावधानों के अनुरूप नहीं होगा तथा उनका पालन नहीं करेगा ।

S.O. 2516. In exercise of the powers under Section 9ofthe Customs Act, 1962 (52 of 1962) read with Notification No. 33/94-Customs (NT) dated : 1-7-1994 of the Government ofIndia, Ministry ofFinance , Deptt. ofRevenue, New Delhi , and M.F. ( D. R. ) Circular No. 31/2003- Customs , dated 7-4-2003 , I hereby declare the premise of M/ s . W. P.P. Packaging, Factorypara , Kaikhali , Chiriamore , P.O.-R. Gopalpur , 24 Parganas (N) Kolkata - 700136 in the state of West Bengal to be Wharehousing Station under the Customs Act,1962 (52 of 1962) for the limited purpose of setting up of 100 per cent Export Oriented Undertaking as per letter ofpermission of the Development Commissioner , Falta Special Economic Zone , Ministry of Cornmerce and Industry, Government of India, 2nd M. S. O. Building , 4th Floor, Nizam Palace, Kolkata - 700020 vide letter No. 2(1)W- 3/2006/3616 dated 20-9-2006.

[अधिसूचना सं. 241/2007/फा. सं. 203/22/2006- आ.क.नि.- II ] सुरेन्द्र पाल , अवर सचिव (Central Board of Direct Taxes) New Delhi , the 30th August, 2007 [C. No. V( 19)/01 /CE/Tech /Kol - 111 / 2006/2540-41 ] SMT. D. B. DASGUPTA, Commissioner

( केन्द्रीय प्रत्यक्ष कर बोर्ड ) नई दिल्ली, 30 अगस्त, 2007

S.O. 2517. It is hereby notified for general information that the organization Indian Institute of Science, Bangalore has been approved by the Central Government for the purpose of clause ( ii) of sub- section (1) of Section 35 of the Income- tax Act , 1961 ( said Act) , read with Rules 5C and 5E of the Income- tax Rules , 1962 (said Rules), with effect from 1-4-2004 in the category of 'University' , partly engaged in research activities subject tothe following conditions , namely :-

(i) The sums paid to the approved organization shall be utilized for scientific research;

( ii) The approved organization shall carry out scientific research through its faculty members or its enrolled students;

का.आ. 2517.- सर्वसाधारण की जानकारी के लिए एतद्वारा यह अधिसूचित किया जाता है कि केन्द्र सरकार द्वारा आयकर नियमावली , 1962 ( उक्त नियमावली ) के नियम ऽग और 5ङ के साथ पठित आयकर अधिनियम , 1961 ( उक्त अधिनियम ) की धारा 35 की उप- धारा ( 1 ) के खण्ड ( ii ) के प्रयोजनार्थ 1-4-2004 से संगठन इंडियन इंस्टीट्यूट ऑफ साइंस , बंगलौर को निम्नलिखित शर्तों के अधीन आंशिक रूप से अनुसंधान कार्यकलापों में लगी ' यूनिवर्सिटी' की श्रेणी में अनुमोदित किया गया है । अर्थात्:-

( i ) अनुमोदित संगठन को प्रदत्त राशि का उपयोग वैज्ञानिक अनुसंधान के लिए किया जाएगा;

(ii ) अनुमोदित संगठन अपने संकाय सदस्यों अथवा अपने नामांकित छात्रों के माध्यम से वैज्ञानिक अनुसंधान करेगा;

(iii) The approved organization shall maintain books of accounts and get such books audited by an accountant as defined in the explanation to sub- section ( 2) of Section 288 of the said Act and furnish the report of such audit duly signed and verified by such accountant to the Commissioner ofIncome -taxor the Director of Income -tax having jurisdiction over the case , by the due date of furnishing the return of Income under sub- section (1) of Section 139 of the said Act; (iii ) अनुमोदित संगठन बही- खाता रखेगा तथा उक्त अधिनियम की धारा 288 की उप - धारा (2 ) के स्पष्टीकरण में यथा परिभाषित किसी लेखाकार से अपनी खाता- बही की लेखा परीक्षा कराएगा और उक्त अधिनियम की धारा 139 की उप- धारा ( 1 ) के अंतर्गत आय विवरणी प्रस्तुत करने की नियत तिथि तक ऐसे लेखाकार द्वारा विधिवत सत्यापित एवं हस्ताक्षरित लेखा परीक्षा रिपोर्ट मामले में क्षेत्राधिकार रखने वालें आयकर आयुक्त अथवा आयकर निदेशक को प्रस्तुत करेगा ।

(iv) The approved organization shall maintain a separate statement of donations received and amounts applied for scientific research and a copy of such statement duly certified by the auditor shall accompany the report of audit referred to above .

2. The Central Government shall withdraw the approval if the approved orgainzation :-

(iv ) संगठन वैज्ञानिक अनुसंधान के लिए प्राप्त दान तथा प्रयुक्त राशि का अलग विवरण रखेगा और उपर्युक्त लेखा परीक्षा रिपोर्ट के साथ लेखा परीक्षक द्वारा विधिवत सत्यापित विवरण की प्रति प्रस्तुत करेगा ।

(a) fails to maintain books of accounts referred to in sub -paragraph (iii) of Paragraph 1 ; or 2. केन्द्र सरकार यह अनुमोदन वापिन ले लेगी यदि अनुमोदित संगठन :-

(b) fails to furnish its audit report referred to in sub- paragraph ( iii ) of paragraph 1; or 6561

भारत का राजपत्र : सितम्बर 8, 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii) ]

लेखा परीक्षा रिपोर्ट प्रस्तुत नहीं करेगा ; अथवा (c) fails to furnish its statement of the donations received and sums applied for scientific research referred to in sub -paragraph ( iv ) of paragraph 1; or

(d) ceases to carry on its research activities or its research activities are not found to be genuine ; or

(घ) अपना अनुसंधान कार्य करना बंद कर देगा अथवा इसके अनुसंधान कार्य को जायज नहीं पाया जाएगा ; अथवा (e) ceases to conform to and comply with the provisions of clause ( ii ) of sub - section (1 ) of Section 35 of the said Act read with rules 5C and 5 E of the said Rules .

(ङ) उक्त नियमावली के नियम 5 ग और 5ङ के साथ पठित उक्तअधिनियम की धारा 35 की उप- धारा ( 1 ) के खण्ड (ii ) के प्रावधानों के अनुरूप नहीं होगा तथा उनका पालन नहीं करेगा ।

[Notification No. 241 /2007/F.No . 203 /22/2006/ITA - II ] SURENDER PAL, Under Secy .

नई दिल्ली, 30 अगस्त, 2007

[अधिसूचना सं. 240/2007/फा. सं. 203/ 10/2004- आ.क.नि.- II ] सुरेन्द्रपाल , अवर सचिव New Delhi, the 30th August , 2007 का.आ. 2518-सर्वसाधारण की जानकारी के लिए एतद्वारा यह अधिसूचित किया जाता है कि केन्द्र सरकार द्वारा आयकर नियमावली, 1962 ( उक्त नियमावली ) के नियम 5 ग और 5 ङ के साथ पठित आयकर अधिनियम , 1961 ( उक्त अधिनियम ) की धारा 35 की उप- धारा ( 1 ) के खण्ड ( ii ) के प्रयोजनार्थ 1-4-2003 से संगठन जवाहरलाल नेहरू सेंटर फॉर एडवांस्ड साइंटिफिक रिसर्च , बंगलौर को निम्नलिखित शर्तों के अधीन आंशिक रूप से अनुसंधान कार्यकलापों में लगी ' अन्य संस्था' की श्रेणी में अनुमोदित किया गया है,

S.O. 2518. It is hereby notified for general information that the organization Jawaharlal Nehru Centre for Advanced Scientific Research , Bangalore has been approved by the Central Government for the purpose of clause ( ii ) of sub- section ( 1 ) of Section 35 of the Income- tax Act, 1961 (said Act) , read with Rules 5C and 5E of the income-tax Rules , 1962 ( said Rules ) , with effect from 1-4-2003 in the category of ' other Institution ' , partly engaged in research activities subject to the following conditions , namely :-

अर्थात्:-

(1) The sums paid to the approved organization shall be utilized for scientific research;

(i ) अनुमोदित संगठन को प्रदत्त राशि का उपयोग वैज्ञानिक अनुसंधान के लिए किया जाएगा;

(ii) The approved organization shall carry out scientific research through its faculty members or its enrolled students ;

( iii ) अनुमोदित संगठन बही- खाता रखेगा तथा उक्त अधिनियम की धारा 288 की उप - धारा ( 2 ) के स्पष्टीकरण में यथा परिभाषित किसी लेखाकार से अपनी खाता- बही की लेखा परीक्षा कराएगा और उक्त अधिनियम की धारा 139 की उप- धारा ( 1 ) के अंतर्गत आय विवरणी प्रस्तुत करने की नियत तिथि तक ऐसे लेखाकार द्वारा विधिवत सत्यापित एवं हस्ताक्षरित लेखा परीक्षा रिपोर्ट मामले में क्षेत्राधिकार रखने वाले आयकर आयुक्त अथवा आयकर निदेशक को प्रस्तुत करेगा।

2. The Central Government shall withdraw the approval if the approved orgainzation :-

2. केन्द्र सरकार यह अनुमोदन वापिस ले लेगी यदि अनुमोदित संगठन: -

(a) fails to maintain books of accounts referred to in Sub -paragraph (iii ) of paragraph 1; or (क ) पैराग्राफ 1 के उप-पैराग्राफ ( iii ) में उल्लिखित लेखा बही नहीं रखेगा; अथवा

(ख) पैराग्राफ । के उप- पैराग्राफ ( iii ) में उल्लिखित अपनी

(b) fails to furnish its audit report referred to in sub- paragraph ( iii ) of paragraph 1 ; or 6562

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929 [PART II-SEC. 3( ii ) ]

(घ) अपना अनुसंधान कार्य करना बंद कर देगा अथवा इसके अनुसंधान कार्य को जायज नहीं पाया जाएगा ; अथवा (c) fails to furnish its statement of the donations received and sums applied for scientific research referred to in sub -paragraph ( iv) ofparagraph 1; or

(d) ceases to carry on its research activities or its research activities are not found to be genuine ; or

(ङ) उक्त नियमावली के नियम 5 ग और 5ङ के साथ पठित उक्त अधिनियम की धारा 35 की उप - धारा ( 1 ) के खण्ड ( ii ) के प्रावधानों के अनुरूप नहीं होगा तथा उनका पालन नहीं करेगा ।

(e) ceases to conform to and comply with the provisions of clause (ii ) of Sub - section ( 1 ) of Section 35 of the said Act read with rules 5C and 5 E of the said Rules .

[अधिसूचना सं. 237/2007/फा. सं. 203/35/2007- आ.क.नि.- II ] सुरेन्द्र पाल , अवर सचिव New Delhi , the 30th August , 2007 [Notification No. 240/2007/F.No . 203 / 10/2004/ITA - II ] SURENDER PAL , Under Secy .

नई दिल्ली, 30 अगस्त, 2007

S.O. 2519. It is hereby notified for general information that the organization Government College of Engineering and Leather Technology , Kolkata has been approved by the Central Government for the purpose of clause (ii) of Sub-section ( 1) of Section 35 of the Income- tax Act, 1961 (said Act) , read with Rules 5C and 5E of the Income-tax Rules , 1962 (said Rules) , with effect from 1-4- 2006 in the category of ' College ' , partly engaged in research activities subject to the following conditions , namely :-

(i) The sums paid to the approved organization shall be utilized for scientific research;

(ii) The approved organization shall carry out scientific research through its faculty members or its enrolled students;

का.आ. 2519.- सर्वसाधारण की जानकारी के लिए एतद्द्वारा यह अधिसूचित किया जाता है कि केन्द्र सरकार द्वारा आयकर नियमावली , 1962 ( उक्त नियमावली ) के नियम 5 ग और 5 ङ के साथ पठित आयकर अधिनियम , 1961 ( उक्त अधिनियम ) की धारा 35 की उप - धारा ( 1 ) के खण्ड ( ii ) के प्रयोजनार्थ 1-4-2006 से संगठन गवर्नमेंट कॉलेज ऑफ इंजीनियरिंग एण्ड लेदर टैक्नॉलाजी, कोलकाता को निम्नलिखित शर्तों के अधीन आंशिक रूप से अनुसंधान कार्यकलापों में लगी ' कॉलेज ' की श्रेणी में अनुमोदित किया गया है , अर्थात्:-

( i) अनुमोदित संगठन को प्रदत्त राशि का उपयोग वैज्ञानिक अनुसंधान के लिए किया जाएगा;

(ii) अनुमोदित संगठन अपने संकाय सदस्यों अथवा अपने नामांकित छात्रों के माध्यम से वैज्ञानिक अनुसंधान करेगा;

(iii ) अनुमोदित संगठन बही - खाता रखेगा तथा उक्त अधिनियम की धारा 288 की उप- धारा ( 2 ) के स्पष्टीकरण में यथा परिभाषित किसी लेखाकार से अपनी खाता- बही की लेखा परीक्षा कराएगा और उक्त अधिनियम की धारा 139 की उप- धारा ( 1 ) के अंतर्गत आय विवरणी प्रस्तुत करने की नियत तिथि तक ऐसे लेखाकार द्वारा विधिवत सत्यापित एवं हस्ताक्षरित लेखा परीक्षा रिपोर्ट मामले में क्षेत्राधिकार रखने वाले आयकर आयुक्त अथवा आयकर निदेशक को प्रस्तुत करेगा।

2. The Central Government shall withdraw the approval if the approved orgainzation :-

(a) fails to maintain books of accounts referred to in Sub -paragraph (iii ) of paragraph 1; or

(b) fails to furnish its audit report referred to in sub- paragraph ( iii ) of paragraph 1 ; or

( iv ) संगठन वैज्ञानिक अनुसंधान के लिए प्राप्त दान तथा प्रयुक्त राशिका अलग विवरण रखेगा और उपर्युक्त लेखा परीक्षा रिपोर्ट के साथ लेखा परीक्षक द्वारा विधिवत सत्यापित विवरण की प्रति प्रस्तुत करेगा।

2. केन्द्र सरकार यह अनुमोदन वापिस ले लेगी यदि अनुमोदित संगठन :-

(c) fails to furnish its statement of the donations received and sums applied for scientific research referred to in sub - paragraph ( iv ) of paragraph 1; or

(क) पैराग्राफ 1 के उप-पैराग्राफ ( iii ) में उल्लिखित लेखा बही नहीं रखेगा; अथवा

(d) ceases to carry on its research activities or its research activities are not found to be genuine ; or

(ख) पैराग्राफ 1 के उप- पैराग्राफ ( iii ) में उल्लिखित अपनी लेखा परीक्षा रिपोर्ट प्रस्तुत नहीं करेगा ; अथवा

(e) ceases to conform to and comply with the provision of clause (ii ) of sub- section ( 1) of Section 35 of the said Act read with rules 5C of the said Rules .

[Notification No. 237/2007/F.No . 203 /35/2007/ITA- II ] (ग ) पैराग्राफ 1 के उप- पैराग्राफ ( iv ) में उल्लिखित वैज्ञानिक अनुसंधान के लिए प्राप्त एवं प्रयुक्त दान का अपना विवरण प्रस्तुत नहीं करेगा; अथवा

SURENDER PAL, Under Secy .

6563

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 (ii ) ]

(iii ) विविधता सूचकांक को कार्यरूप प्रदान करने और इसके कार्यान्वयन की निगरानी हेतु उचित तंत्र सुझाना। अल्पसंख्यक कार्य मंत्रालय नई दिल्ली, 28 अगस्त, 2007

( iv ) उपर्युक्त मुद्दों से संगतपूर्ण अन्य कोई अनुशंसा करना। विषय : आवास , शिक्षा और कार्य स्थलों में विविधता को बढ़ावा देने के लिए एक समुचित 'विविधता सूचकांक ' कीअनुशंसा हेतु विशेषज्ञ दल का गठन ।

5. विशेषज्ञ दल को अपना प्रतिवेदन ( रिपोर्ट ) तैयार करने हेतु सचिवालयीन सहायता स्वरूप मात्र 50,000 रुपए तक की राशि ही व्यय करनी होगी ।

का.आ. 2520.- सच्चर समिति ने , अन्य बातों के साथ - साथ , निम्नलिखित सिफारिशें भी की हैं: -

6. विशेषज्ञ दल की बैठकों के आयोजन हेतु सहायता अल्पसंख्यक कार्य मंत्रालय द्वारा उपलब्ध कराई जाएगी ।

7. विशेषज्ञ दल को अपना प्रतिवेदन तीन माह की अवधि तक प्रस्तुत करना होगा।

8. ( i ) विशेषज्ञ दल की बैठक में शामिल होने वाले गैर-सरकारी सदस्यों की यात्रा भत्ता दैनिक भत्ता पर होने वाले व्यय को अल्पसंख्यक कार्य मंत्रालय द्वारा बहन किया जाएगा । ऐसे सदस्य भारत सरकार में उच्चतम श्रेणी के ग्रेड -1 अधिकारी के समकक्ष यात्रा भत्ता/दैनिक भत्ता के पात्र होंगे ।

" विविधता सूचक को कतिपय प्रोत्साहन देने को भी परखना चाहिए। हम मानते हैं कि यह एक जटिल समस्या है पर अगर विविधता को मापने के लिए एक पारदर्शक और सर्वमान्य तरीका विकसित हो पाए, तो इस सूचक से कई तरह के फायदों को जोड़ा जा सकता है कि जिससे सभी सामाजिक- धार्मिक श्रेणियों को शिक्षा , सरकार और निजी रोजगार व गृह निर्माण का समान अवसर मिलने को सुनिश्चित किया जा सके। विविधता का नियम जो समानता को साथ लेकर चलता है , उसे न सिर्फ बहुसंख्यक और अल्पसंख्यकों के बीच लागू करना है वरन् अल्पसंख्यकों में आपस में भी लागू करना है जिससे की वाकई लाभ से वंचित लोगों को फायदा पहुंच सके और पहुंचना चाहिए । एक सर्वमान्य विविधता सूचक होने से , नीतियां निम्नलिखित दे सकती हैं :

(ii ) स्टेशन के बाहर के गैर- सरकारी सदस्यों को व्यय विभाग के दिनांक 10-8-1994 के का.आ. सं. 1902/2/94/स्था. 4 के अनुसार, एक कमरे के किराए का भुगतान किया जाएगा।

9. यह सक्षम प्राधिकारी के अनुमोदन और संयुक्त सचिव एवं वित्तीय सलाहकार की सहमति से दिनांक 24-8-2007 के डायरी सं. 27/जेएस एवं एफए/ एमए द्वारा जारी किया जाता है।

[सं. 14-12/2006( डीआई ) -पीपी-1 ] अधिक अनुदान के रूप में उन शैक्षणिक संस्थाओं को लाभ जिनमें अधिक विविधता है और जो उसे कायम रख पाता है । यह लाभ दोनों कालेज और यूनिवर्सिटीज पर लागू हो सकते हैं, चाहे वो सरकारी हों या निजी क्षेत्र की हों ।

ए. लुईखम , संयुक्त सचिव

MINISTRY OF MINORITY AFFAIRS New Delhi , the 28th August , 2007 निजी क्षेत्र की कार्यशक्ति में विविधता को बढ़ावा देने के लिए लाभ , जहां ऐसे कदम कॉरपोरेट सामाजिक जिम्मेदारी का हिस्सा होना चाहिए कुछ सकारात्मक कार्य इस प्रक्रिया को चालू करने में मददगार हो सकते हैं ।

Subject: Constitution of an Expert Groupto recommend an appropriate ' diversity index ' to promote diversity in living, educational and work spaces .

भवन निर्माताओं को ऐसे हाउसिंग कॉम्पलेक्स बनाने के लिए लाभ जहां के निवासी जनता में अधिक ' विविध ' हो जिससे कि सामाजिक- धार्मिक श्रेणियों के ' संयुक्त निवासी स्थान ' को बढ़ावा मिल सके । "

S.O. 2520. The Sachar Committee had , inter- alia, recommended as follows:-

2. आवास , शिक्षा और कार्यस्थलों में विविधता को बढ़ावा देने के लिए समुचित ' विविधता सूचकांक ' की अनुशंसा हेतु विशेषज्ञ दल गठित करने का निर्णय लिया गया है । विशेषज्ञ दल में शामिल होंगे

अध्यक्ष

(i) प्रो. अमिताभ कुंडू

सदस्य

(ii) प्रो. सुजाता मरजीत

सदस्य

(iii) प्रो. मोहम्मद अब्दुल कलाम

सदस्य

(iv) डॉ. अश्विनी देशपांडे

सदस्य

(v) डॉ. हबीब द्राबु

"The idea of providing certain incentives to a 'diversity index ' should be explored. Admittedly , this is a complex proposition but if a transparent and acceptable method to measure diversity can be developed , a wide variety of incentives can be linked to this index so as to ensure equal opportunity to all SRCs in the areas of education, government and private employment and housing. The diversity principle which entails equity is to be applied not only between the majority and minorities but also between minorities so that the truly disadvantaged can and should benefit . Given an acceptable diversity index, policies can provide for:

3. विशेषज्ञ दल का अध्यक्ष , यथावश्यक , ऐसे दो अतिरिक्त सदस्यों को नियुक्त कर सकेगा जिन्हें दल द्वारा अपेक्षित विशेषज्ञता हासिल हो।

4. विशेषज्ञ दल द्वारा विचारणीय मुद्दे इस प्रकार हैं :

Incentives in the form of larger grants to those educational institutions that have higher diversity and are able to sustain it . These incentives can apply to both colleges and universities, both in the public and the private sector .

( i ) शिक्षा , सरकारी और निजी रोजगार तथा आवास के क्षेत्र में विविधता के आकलन के लिए एक पारदर्शी और स्वीकार्य सूचकांक विकसित करना और उसे कार्य रूप देना ।

Incentives to private sector to encourage diversity in the work force . While such ( ii ) प्रोत्साहन और निरूत्साहन के लिए समुचित ढ़ांचातंत्र सुझाना। 6564

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

initiatives should be part of the corporate social responsibility, some affirmative action may help initiate this process .

Incentives to builders for housing complexes that have more ' diverse ' resident populations to promote ' composite living spaces ' of SRCs . " 2. It has been has decided to set up an Expert Group to recommend an appropriate diversity index to promote diversity in living, educational and work spaces . The Expert Group shall consist of the following :

(i) Prof. Amitahh Kundu Chairman ( ii) Prof. Sugata Marjit Member (iii) Prof. Md . Abdul Kalam Member (iv) Dr. Ashwini Deshpande Member (v) Dr. Hasib Drabu Member 3.Ifconsidered necessary, the Chairman of the Expert Group, may co - opt upto two additional members possessing expertise required by the Group.

4. The terms of reference of the Expert Group shall be asfollows :-

(i) to develop and devise a transparent and acceptable index to measure diversity in the areas of education , government and private einployment and housing .

(ii) to suggest an appropriate structure of incentives and disincentives .

( iii) to suggest a suitable mechanism for operationalising the diversity index and monitoring its implementation.

(iv) to make any other recommendations relevant to the above .

5. The Expert Group may incur an expenditure upto a sum of Rs . 50,000 only for secretarial assistance for preparation of the report.

6. Assistance for convening meetings of the Expert Group shallbe provided hy the Ministry of Minority Affairs.

7. The Edxpert Group shall submit its report within a period of three months .

8. (i) The expenditure on 'TA/DA of the non- official members of the Expert Group in connection with the meeting of the Group will be borne by theMinistry of Minority Affairs. They will be entitled to TA/ DA as admissible to Grade - I Officers of the highest category in the Government of India .

(ii) Out - station non -official members , will be allowed reimbursement of single room rent in erms of Department of Expenditure O.M. No. 19020/2/94/E - IV dated 10-8-1994.

(iii) Non -official members will be entitled to a sitting fee of Rs. 2,000 per day.

9. This issues with the approval of the Competent Authority and concurrence of JS & FA vide diary No. 27/ JS& FA/MA dated 24-8-2007 .

[ No. 14-12/2006 / ( D1 ) -PP -1 ] A. LUIKHAM ,Jt . Secy .

[ PART II- SEC . 3 (ii ) ] संचार और सूचना प्रौद्योगिकी मंत्रालय (दूरसंचार विभाग )

(राजभाषा अनुभाग ) नई दिल्ली , 27 अगस्त, 2007

का.आ. 2521.- 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 कार्यालय को, जिसमें 80 प्रतिशत से अधिक कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , एतद्वारा अधिसूचित करती है । मुख्य महाप्रबंधक दूरसंचार , भारत संचार निगम लिमिटेड, झारखण्ड परिमंडल, रांची मंडल अभियंता ( दूरभाष ) , बी. देवघर

[सं. ई.11016/ 1/2007- रा.भा. ( पार्ट-1 ) ] बलराम शर्मा , संयुक्त सचिव ( प्रशासन ) MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY

(Department of Telecommunications) (O. L. SECTION) New Delhi , the 27th August, 2007 S.O. 2521. In pursuance of rule 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 Office under the administrative control of the Ministry of Communications and Information Technology, Department of Telecommunications where more than 80 % of staff have acquired working knowledge ofHindi .

Chief GeneralManager Telecom. , B.S.N.L. Jharkhand Circle , Ranchi Divisional Engincer , ( Telephone ) , B. Devghar.

[ No. E. 11016/1/2007- O.L. ( Part - 1 ) ] BALRAM SHARMA , Jt . Secy . (Admn .) नई दिल्ली , 30 अगस्त, 2007

का.आ. 2522, 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 कार्यालय को, जिसमें 80 प्रतिशत से अधिक कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , एतद्वारा अधिसूचित करती है ।

कार्यकारी निदेशक , महानगर टेलिफोन निगम लिमिटेड , मुम्बई महाप्रबंधक ( रिपेयर सेंटर ) महानगर टेलीफोन निगम लिमिटेड , मुम्बई [सं. ई.11016/1/2007- रा.भा. ( पार्ट-1 ) ]

बलराम शर्मा, संयुक्त सचिव ( प्रशासन ) New Delhi , the 30th August , 2007 S.O. 2522.-In pursuance of rule 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 Office under the administrative control ofthe Ministry of Communications and Information [ भाग II- खण्ड 3 ( ii) ]

Technology , Department of Telecommunications where more than 80 % of staff have acquired working knowledge ofHindi .

Executive Director , Mahanagar Telephone Nigam Limited , Mumbai General Manager (Repair Centre) Mahanagar Telephone Nigam Limited, Mumbai .

[No. E. 11016/1/2007 -O.L. (Part - 1) ] BALRAM SHARMA, Jt . Secy. (Admn. )

विद्युत मंत्रालय नई दिल्ली, 23 अगस्त, 2007

का.आ. 2523. केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम 1976 के नियम 10 के उप नियम (4) के अनुसरण में पावरग्रिड कारपोरेशन ऑफ इंडिया लि. , गुड़गांव तथा रूरल इलेक्ट्रीफिकेशन कारपोरेशन लि. , नई दिल्ली के प्रशासनिक नियंत्रणाधीन कार्यालयों को, जिनके 80 प्रतिशत कर्मचारीवृंद ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , एतद्वारा अधिसूचित करती है:

1. पावरग्रिड कारपोरेशन ऑफ इंडिया लि. , पावरग्रिड कॉलोनी , बोढ़ , बोढ़ , नूरपुर ( हि.प्र. ) - 176201

2. पावरग्रिड कारपोरेशन ऑफ इंडिया लि. , 400/220 के.वी. उप केन्द्र, गांव मटना , फतेहाबाद , हिसार रोड , रा . मार्ग -10 , जिला : फतेहाबाद ( हरियाणा ) -125050

3. पावरग्रिड कारपोरेशन ऑफ इंडिया लि. , कायमकुलम 245 केवी जी.आई.एस. स्टेशन , चूलवेरूवु पी.ओ. आलप्पुषा,

केरल -690506

4. रूरल इलेक्ट्रीफिकेशन कारपोरेशन लि. , एन.एच. 7 , एन.पी.ए. पोस्ट, शिवरामपल्ली , हैदराबाद -500052

5. सेंट्रल इंस्टीट्यूट फॉर रूरल इलेक्ट्रीफिकेशन ऑफ रूरल इंलेक्ट्रीफिकेशन कारपोरेशन लि. , एन.पी.ए. पोस्ट, शिवरामपल्ली, हैदराबाद -500052

[सं. 11017/1/2007 - हिन्दी]

अशोक कुमार खुराना, अपर सचिव MINISTRY OF POWER New Delhi , the 23rd August , 2007

S.O. 2523 .-- 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 following offices under the administrative control of Powergrid Corporation of India Ltd. , Gurgaon and Rural Electrification Corporation , New Delhi , the staff whereof have acquired 80 % working knowledge of Hindi:-- 1. Powergrid Corporation of India Ltd. , Powergrid Colony , Bodh , Bodh, Nurpur (HP))- 176201 .

6565

भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

2. Powergrid Corporation of India Ltd. , 400/220 KV Sub-Station, Village Matana , Fatehabad, Hisar Road , NH - 10 , Distt . Fatehabad (Haryana)-125050 .

3. Powergrid Corporation of India Ltd. , Kayamkulam GIS 245 KV Station , Choolatheruvu Post Kayamkulam , Alappuzha Distt . Kerala -690506 .

4. Rural Electrification Corporation Ltd. , NH -7 , NPA Post , Shivrampally , Hyderabad- 500052 .

5. Central Institute for Rural Electrification ofRural Electrification Corporation Ltd. , NPA Post , Shivarampally , Hyderabad -500052 . [No. 11017/1/2007-Hindi ) ] ASHOK KUMAR KHURANA, Addl . Secy.

संस्कृति मंत्रालय नई दिल्ली , 30 अगस्त, 2007

का.आ. 2524.-केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम 1976 के नियम 10के उपनियम 4 के अनुसरण में संस्कृति मंत्रालय के अन्तर्गत आने वाले निम्नलिखित कार्यालयों को , जिनमें 80 प्रतिशत से अधिक कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , अधिसूचित करती है :-

1. भारतीय पुरातत्व सर्वेक्षण , अजंता उपमंडल , अजंता । 2. भारतीय पुरातत्व सर्वेक्षण , दौलताबाद , उप मंडल , दौलताबाद । 3. भारतीय पुरातत्व सर्वेक्षण , लोणार उपमंडल , लोणार । 4. भारतीय पुरातत्व सर्वेक्षण , नासिक उपमंडल, नासिक । 5. भारतीय पुरातत्व सर्वेक्षण , नागपुर उपमंडल , नागपुर । 6. भारतीय पुरातत्व सर्वेक्षण , चंद्रपुर उपमंडल , चंद्रपुर । 7. भारतीय पुरातत्व सर्वेक्षण, अहमदनगर उपमंडल , अहमदनगर । 8. भारतीय पुरातत्व सर्वेक्षण , लखनऊ मंडल , अलीगंज , लखनऊ । 9. भारतीय पुरातत्व सर्वेक्षण , लखनऊ उपमंडल- प्रथम , लखनऊ । 10. भारतीय पुरातत्व सर्वेक्षण , लखनऊ उपमंडल द्वितीय , रेजीडेन्सी, लखनऊ

11. भारतीय पुरातत्व सर्वेक्षण , लखनऊ उपमंडल - तृतीय , सिकन्दरबाग गेट , लखनऊ ।

12. भारतीय पुरातत्व सर्वेक्षण, कानपुर उपमंडल , कचहरी सिमेट्री , कानपुर ।

13. भारतीय पुरातत्व सर्वेक्षण , उपमंडल इलाहाबाद , खुसरोबाग गेट , इलाहाबाद ।

14. भारतीय पुरातत्व सर्वेक्षण , उपमंडल ललितपुर , मकान नम्बर 30 , मौथाना नया जैन मंदिर , ललितपुर

15. भारतीय पुरातत्व सर्वेक्षण , उपमंडल महोबा, कीरत सागर चर्च के पास , राठ रोड , महोबा ।

16. भारतीय पुरातत्व सर्वेक्षण , उपमंडल झांसी , रानी लक्ष्मी बाई पैलेस , झांसी । 6566

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

17. भारतीय पुरातत्व सर्वेक्षण , उपमंडल फैजाबाद , गुलाबबाड़ी, फैजाबाद।

18. भारतीय पुरातत्व सर्वेक्षण , उपमंडल श्रावस्ती , सहेट , श्रावस्ती।

[सं. 1-1/2007- हिन्दी]

मोहिनी हिंगोरानी , निदेशक ( रा. भा. ) MINISTRY OF CULTURE

New Delhi , the 30th August , 2007

S.O. 2524. In pursuance of Sub- rule (4) of the Rule 10 of the Official Languages (use for official purpose of the Union) Rules , 1976 the Central Government hereby notifies the following offices under the Ministry of Culture wherein more than 80 % staff have acquired working knowledge of Hindi :-

1. Archaeological Survey of India, Ajanta Sub - circle , Ajanta.

2. Archaeological Survey of India , Daulatabad Sub- circle , Daulatabad .

3. Archacological Survey of India, Lonar Sub - circle , Lonar.

4. Archaeological Survey of India, Nasik Sub - circle Nasik.

5. Archaeological Survey of India , Nagpur Sub- circle , Nagpur.

6. Archaeological Survey of India , Chandrapur Sub- circle, Chandrapur.

7. Archaeological Survey of India , Ahmednagar Sub- circle , Ahmedanagar.

8. Archaeological Survey of India , Lucknow circle , Aliganj , Lucknow.

9. Archacological Survey of India, Lucknow Sub - circle- 1, Lucknow.

10. Archaeological Survey of India , Lucknow Sub- circle- II , Residency , Lucknow.

11. Archaeological Survey of India, Lucknow Sub-circle- III , Sikanderbag Gate , Lucknow.

12. Archaeological Survey of India , Kanpur Sub- circle , Kachhari cemetery, Kanpur .

13. Archacological Survey of India, Allahabad Sub -circle, Khusrobag Gate , Allahabad .

14. Archaeological Survey of India , Lalitpur Sub - circle , House No. 30, Mauthana New Jain Temple , Lalitpur .

15. Archaeological Survey of India, Mahoba Sub- circle, Near Kirat Sagar Church , Rath Road , Mahoba.

16. Archaeological Survey of India , Jhansi Sub- circle , Rani Lakshmi Bai Palace , Jhansi .

17. Archaeological Survey of India, Faizabad Sub - circle , Faizabad.

18. Archaeological Survey of India , Shravasti Sub -circle , Sahet , Shravasti .

[No.1-1/2007 -Hindi ] MOHINI HINGORANI , Director (OL)

[ PART II- SEC. 3 ( ii )] कोयला मंत्रालय

आदेश

नई दिल्ली, 27 अगस्त, 2007

का.आ. 2525,-कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम, 1957 ( 1957 का 20 ) ( जिसे इसमें इसके पश्चात् उक्त अधिनियम कहा गया है ) की धारा 9 की उप- धारा ( 1 ) के अधीन जारी , भारत सरकार के कोयला मंत्रालय की अधिसूचना संख्यांक का. आ. 3822 तारीख 19 सितम्बर , 2006 जो भारत के राजपत्र , भाग II , खण्ड 3 , उप - खण्ड ( ii ) तारीख 23 सितम्बर , 2006 में प्रकाशित की गई थी , उक्त अधिसूचना से संलग्न अनुसूची में वर्णित भूमियां और ऐसी भूमियों ( जिन्हें इसमें इसके पश्चात् उक्त भूमियां कहा गया है ) में या उस पर के अधिकार , उक्त अधिनियम की धारा 10 की उप- धारा ( 1 ) के अधीन , सभी विल्लंगमों से मुक्त होकर आत्यंतिक रूप में केन्द्रीय सरकार में निहित हो गए हैं :

और केन्द्रीय सरकार का यह समाधान हो गया है कि वेस्टर्न कोलफील्डस लिमिटेड, नागपुर ( जिसे इसमें इसके पश्चात् उक्त कम्पनी कहा गया है ) , ऐसे निबंधनों और शर्तों का, जो केन्द्रीय सरकार इस निमित्त अधिरोपित करना उचित समझे , अनुपालन करने के लिए तैयार है ;

अतः अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 11 की उप -धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह निदेश देती है कि भूमियाँ और उक्त भूमियों में इस प्रकार निहित या उस पर के सभी अधिकार , तारीख 23 सितम्बर , 2006 से केन्द्रीय सरकार में इस प्रकार निहित बने रहने की बजाय , निम्नलिखित निबंधनों और शर्तों के अधीन रहते हुए, उक्त कम्पनी में निहित हो जाएंगे , अर्थात्:-

1. उक्त सरकारी कम्पनी , उक्त अधिनियम के उपबंधों के अधीन यथा अवधारित प्रतिकर, ब्याज , नुकसान और वैसी ही मदों की बाबत किए गए सभी संदायों की केन्द्रीय सरकार को प्रतिपूर्ति करेगी;

2. उक्त कम्पनी द्वारा शर्त ( 1 ) के अधीन, केन्द्रीय सरकार को संदेय रकमों का अवधारण करने के प्रयोजन के लिए एक अधिकरण का गठन किया जाएगा और ऐसे किसी अधिकरण और अधिकरण की सहायता के लिए नियुक्त किए गए व्यक्तियों के संबंध में उपगत सभी व्यय सरकारी कम्पनी वहन करेगी और वैसे ही उक्त भूमियों में या उन पर इस प्रकार निहित अधिकारों के लिए या उनके संबंध में सभी विधिक कार्यवाहियों , जैसे अपीलों आदि की बाबत उपगत , सभी व्यय भी उक्त सरकारी कंपनी वहन करेगी।

3. उक्त सरकारी कम्पनी , केन्द्रीय सरकार या उसके पदधारियों की, ऐसे किसी अन्य के संबंध में , जो उक्त भूमियों में या उस पर इस प्रकार निहित होने वाले पूर्वोक्त अधिकारों के बारे में, केन्द्रीय सरकार या उसके पदधारियों द्वारा या उनके विरुद्ध किन्हीं कार्यवाहियों के संबंध में आवश्यक हो , क्षतिपूर्ति करेंगी ;

4. उक्त सरकारी कम्पनी को , केन्द्रीय सरकार के पूर्व अनुमोदन के बिना भूमियों और उक्त भूमियों में या उन पर अधिकारों को अन्य व्यक्ति को अंतरित करने की शक्ति नहीं होगी और 5. उक्त सरकारी कम्पनी , ऐसे निदेशों और शर्तों का , जो केन्द्रीय सरकार द्वारा जब कभी आवश्यक हो उक्त भूमि के विशिष्ट 6567 भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii) ]

क्षेत्रों के लिए दिए जाएं या अधिरोपित किए जाएं, पालन करेगी ।

5. The said Government Company shall abide by such direction and conditions as may be given or imposed bythe Central Government for particular areas of the said land, as and when necessary.

[फा. सं. - 43015/ 15/2004/पी.आर.आई.डब्ल्यू. ] एम. शहाबुद्दीन , अवर सचिव

[F. No.43015/15/2004 - PRIW] M. SHAHABUDEEN, Under Secy.

MINISTRY OF COAL ORDER

शुद्धिपत्र नई दिल्ली, 31 अगस्त, 2007

New Delhi , the 27th August, 2007

का.आ. 2526.- केन्दीय सरकार कोयला धारक क्षेत्र ( अर्जन और विकास) अधिनियम , 1957 ( 1957 का 20 ) की धारा 7 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, कोयला मंत्रालय की अधिसूचना संख्यांक काआ. 494 , तारीख 7 फरवरी , 2007 जो भारत के राजपत्र, भाग II , खण्ड 3 , उप-खण्ड ( ii ) तारीख 17 फरवरी , 2007 में प्रकाशित की गई थी, का संशोधन करती है, अर्थात्

(i) पृष्ठ क्रमांक 965 के प्रथम परिच्छेद में-

(क) खण्ड 3 , उप-खण्ड ( ii ) के बाद प्रविष्टि तारीख " 18 मार्च , 2005 " के स्थान पर " 26 मार्च , 2005" प्रविष्टिरखी जाएगी ।

( ii) अनुसूची में-

S.O. 2525 -Whereas on the publication of the notification of the Government of India in the Ministry of Coal , number S.O. 3822 dated the 19th September , 2006 published in the Gazette of India , Part II , Section 3 , Sub- section (ii) , dated the 23rd September, 2006 issued under Sub-section (1 ) Section 9 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 (20 of 1957) (hereinafter referred to as the said Act), the lands and rights in or over the lands, described in the Schedule appended to the said notification (hereinafter referred to as the said lands) vested absolutely in the Central Government free from all encumbrances under Sub- section ( 1 ) of Section 10 ofthe said Act:

(क) तालिका में ऊपर शब्द प्रविष्टि " सभी अधिकार " के स्थान पर "खनन अधिकार " प्रविष्टि रखी जाएगी । And, whereas the Central Government is satisfied that the Western Coalfields Limited, Nagpur (hereinafter referred to as the Government Company ), is willing to comply with such terms and conditions as the Central Governmentthinks fit to impose in this behalf;

(ख) तालिका में क्रम संख्या 1 में गांव के नाम प्रविष्टि " संगोनया" के स्थान पर " सगोनिया " प्रविष्टि रखी जाएगी। और जहां भी " संगोनया " गांव के नाम हो वहां " सगोनिया" प्रविष्ट किया जाएगा ।

(iii ) पृष्ठ क्रमांक 966 में , ग्राम संगोनिया में अर्जित किए जाने वाले प्लाट संख्यांक शीर्षक के अंतर्गत-

"45/1-45/ 2 45/2 45/3 45/4-45/5 45/6 45/7 " प्रविष्टिके स्थान पर " 45/1-45/2-45/3-45/4-45/5- 45/6-45/7" प्रविष्टि रखी जाएगी ।

Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 11 of the said Act, the Central Government hereby directs that the said lands and rights in or over the said lands , so vested, shall with effect from the 23rd September , 2006 instead of continuing to so vest in the Central Government , vest in the said Company, subject to the following terms and conditions , namely :-

[फा. सं. 43015/1 /2005- पीआरआईडब्ल्यू] एम. शहाबुद्दीन , अवर सचिव

CORRIGENDUM

New Delhi , the 31st August, 2007 1. The said Government Company shall reimburse to the Central Government all payments made in respect of compensation, interest, damages and the like , as determined under the provisions of the said Act;

S.O. 2526.- In exercise of the powers conferred by sub- section ( 1 ) of Section 7 of the Coal Bearing Areas (Acquisition and Development ) Act, 1957 (20 of 1957) , the Central Government hereby makes the following amendments in the notification of Government of India in the Ministry of Coal number S.O. 494 dated the 7th February, 2007 and published in Gazette of India , Part - II , Section 3 , Sub -section (ii ) datedated the 17th February, 2007 namely:-

2. A tribunal shall be constituted for the purpose of determining the amounts payable to the Central Government by the Government Company under condition (1) and all expenditure incurred in connection with any such tribunal and persons appointed to assist the tribunal shall be borne by the said Government Company and similarly, all expenditure incurred in respect of all legal proceedings like appeals , etc. , for or in connection with the right, in or over the said lands, so vesting, shall also be borne by the said Government Company;

(1) in the opening paragraph of the said notification , forthe words and figures " sub- section (ii ) dated the 18th March , 2005" , the words and the figures " sub - section (ii ) dated the 26th March , 2005 " shall be substituted;

(2) In the Schedule:-

(a) in the heading above the t able , for the words 'All Rights", the words "Mining Rights " , shall besubstituted;

3. The said Government Company shall indemnify the Central Government or its officials against any other expenditure that may be necessary in connection with any proceedings by or against the Central Government or its officials, regarding the aforesaid rights in or over the said lands so vested;

(b) below the table , for the figures and words " 354- 904 hectares " the figures and words " 354-904 acres" shall be substituted .

[F. No. 43015/1/2005/PRIW]

M. SHAHABUDEEN, Under Secy.

4. The said Government Company shall have no power to transfer the said lands and rights in or over the lands so vested to any other person without the previous approval of the Central Government; and

3625 G1/07-2 6568

THE GAZETTE OF INDIA: SEPTEMBER 8, 2007/BHADRA 17, 1929

[PART II-SEC. 3 ( ii)] श्रम एवं रोजगार मंत्रालय नई दिल्ली, 13 अगस्त, 2007

का.आ. 2527.औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इन्दौर के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार , औद्योगिक अधिकरण जयपुर के पंचाट ( संदर्भ संख्या 37/1996 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/144/1995- आईआर( बी-1 ) ]

अजय कुमार, डेस्क अधिकारी

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi , the 13th August, 2007

2. प्रार्थी यूनियन की ओर से संशोधित स्टेटमैंट ऑफ क्लेम पेश किया गया जिसके संक्षिप्त तथ्य इस प्रकार हैं कि प्रार्थी श्रमिक रामू स्टेट बैंक ऑफ इन्दौर की स्टेशन रोड शाखा में वर्ष 1985 से सफाई कर्मचारी के रिक्त पद के विरुद्ध कार्य कर रहा है और बैंक परिसर के तीन मंजिला भवन के लगभग 6000 वर्ग फीट क्षेत्र की सफाई सुबह 8 बजे से 11 बजे तथा सांय 5.30 से 8.00 तक नियमित रूप से करता है। प्रारंभ में श्रमिक को 250 रुपये पारिश्रमिक मासिक दिया गया किन्तु पांचवे द्विपक्षीय समझौते के अनुसार व बैंक परिपत्र दिनांक 7-9-92 के अनुसार उसे पूर्णकालीन श्रमिक घोषित किया जाकर समझौते के अनुसार लाभ दिलाये जायें व समुचित नियमित वेतन श्रृंखला के लाभ एरियर सहित दिलाये जाने का अवार्ड पारित किया जाये और ये लाभ प्रार्थी श्रमिक दिनांक 1-11-87 से प्राप्त करने का अधिकारी है जो उसे दिलाया जावे ।

S.O. 2527.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 37/1996) of the Industrial Tribunal, Jaipur as shown in the Annexure in the Industrial Dispute between the management of State Bank of Indore and their workmen, received by the Central Government on 13-8-2007.

[No. L- 12012/144/ 1995 - IR ( B- I) ]

AJAY KUMAR, Desk Officer

अनुबन्ध केन्द्रीय औद्योगिक न्यायाधिकरण , जयपुर केस नं. सी. आई. टी. 37/96

रैफरेंस : केन्द्र सरकार, श्रम मंत्रालय , नई दिल्ली का आदेश क्रम एल 12012/144/95- आई.आर. ( बी) दिनांक 24-9-96.

3. अप्रार्थी ने क्लेम का जवाब प्रस्तुत किया और प्रारंभिक आपत्ति की है कि प्रार्थी पिछले 9-10 वर्षों से बैंक ऑफ इन्दौर की स्टेशन रोड शाखा जयपुर में सफाई का कार्य करता है जो कार्य वह उस इलाके का मेहतर होने की हैसियत से जिस तरह अन्य मोहल्लों में करता है उसी तरह बैंक परिसर में भी करता है । यह कार्य वह बैंक के कर्मचारी की हैसियत से नहीं करता है , बैंक की ओर से कभी उसे नियुक्तिपत्र आदि नहीं दिया गया प्रार्थी का केवल बैंक परिपत्र 44/92 को ध्यान में रखते हुए क्षेत्रफल के अनुसार भुगतान कर दिया जाता है, सफाई कर्मचारी हेतु न तो बैंक में कोई पद स्वीकृत है न ही उसे कोई नियुक्तिदी गई है , अतः , वह कर्मचारी सुविधाओं या परिलाभ पाने का अधिकारी नहीं है। क्षेत्रफल के अनुसार मजदूरी के रूप में उसे दिनांक 1-1-94 से 1/2 स्केल वेज के रूप में भुगतान किया जा रहा है । रामू पुत्र श्री भवर लाल , मार्फत अध्यक्ष , ऑल बैंक सफाई कर्मचारी संघ, राजस्थान , मार्फत सैन्ट्रल बैंक ऑफ इण्डिया , आकाशवाणी के पास, एम. आई. रोड, जयपुर । बनाम .....प्रार्थी

1. महाप्रबन्धक ( कार्मिक ) स्टेट बैंक ऑफ इन्दौर, प्रधान कार्यालय 5 , यशवन्त निवास रोड , इन्दौर ।

2. क्षेत्रीय प्रबन्धक , स्टेट बैंक ऑफ इन्दौर , क्षेत्रीय कार्यालय , 15/15 , डब्ल्यूई.ए. , करोल बाग , नई दिल्ली । .....अप्रार्थी

उपस्थित

पीठासीन अधिकारी : श्री गौतम प्रकाश शर्मा, आर.एच.जे.एस.

प्रार्थी की ओर से : श्री कान सिंह राठौड

अप्रार्थी की ओर से:

दिनांक अवार्ड : 27-7-07

अवार्ड

4. गुणावगुण पर अप्रार्थी बैंक का जवाब है कि शाखा का कुल क्षेत्रफल 4800 वर्गफीट है और प्रार्थी सप्ताह में 2 घंटे प्रातिदिन के हिसाब से 12 घंटे कार्य करता है और इस परिश्रम का भुगतान उसे कर दिया जाता है । जो समझौते बैंक व कर्मकार यूनियन के बीच होते हैं वे केवल बैंक में कार्यकर कर्मचारियों पर लागू होते हैं । प्राथी को नियुक्ति बैंक में कभी भी किसी अंशकालीन या पूर्णकालीन स्थाई अथवा अस्थाई पद पर नहीं हुई और वह बैंक कर्मचारी की श्रेणी में नहीं आते । अतः , ये समझौते उस पर लागू नहीं होते । जो चार्ट क्लेम के पैरा 6 में दिनांक 7-9-92 को दर्शाया गया है उसे स्वीकार करते हुए अप्रार्थी का कथन है कि 1-1-94 से इस चार्ट में दी गई दर के अनुसार ही श्रमिक को पारिश्रमिक दिया जाता है । अन्य परिलाभ व सुविधाएं बैंक कर्मचारियों के संबंध में हैं । जो प्रार्थी प्राप्त करने का अधिकारी नहीं है । अतः, क्लेम खारिज किये जाने की प्रार्थना अप्रार्थी ने की है ।

1. केन्द्र सरकार , श्रम मंत्रालय , नई दिल्ली द्वारा निम्न विवाद इस न्यायाधिकरण को अधिनिर्णय हेतु निर्देशित किया गया है :

5. जवाब पेश होने के बाद प्रकरण पधकारान के दस्तावेजात हेतु नियत हुआ और दस्तावेज पेश नहीं होने पर प्रार्थी को साक्ष्य हेतु प्रकरण नियत था । किन्तु दिनांक 7-7-07 को प्रार्थी स्वयं प्रतिनिधि उपस्थित आया और जाहिर किया कि वह प्रकरण को आगे नहीं चलाना चाहता है और प्रकरण में उचित आदेश पारित कर दिये जावें ।

"Whether the action of the management ofState Bank of Indore is justified in not paying full scale and the benefits to Shri Ramu ( Workman) a regular employee as per clause 18 of the bipartite settlement w.e.f. 1-11-87 ? If not, to what relief the workman is entitled and from what date?"

6. विवाद जो यूनियन द्वारा प्रार्थी श्रमिक के लिए उठाया गया है वह प्रार्थी को पूर्णकालीन सफाई कर्मचारी मानते हुए तद्नुसार वेतन व 6569 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[[भाग II- खण्ड 3 ( ii ) ]

The Chief General Manager ,

State Bank of India ,

LocalHeadOffice,

21`, Balaji Salai ,

Madras - 600001 .

अन्य सुविधाएं दिलाये जाने के संबंध में है, चूंकि प्रार्थी ने अपने कथनों की पुष्टि में कोई साक्ष्य भी पेश नहीं की है । और वह प्रकरण आगे चलाना भी नहीं चाहता , ऐसे में इस रैफरेंस के जरिये प्रार्थी कोई राहत प्राप्त नहीं कर सकता । अतः , प्रकरण जो राज्य सरकार द्वारा निर्देशित किया गया है उसका उत्तर निम्न प्रकार दिया जाता है :-

Reference : Order No. L- 12012/ 108/ 92 - IR- B - III , dated 7-9-1992, Ministry of Labour , Govt . of India, New Delhi .

" स्टेट बैंक ऑफ इन्दौर के प्रबन्धन द्वारा श्रमिक रामू को पूर्ण वेतन श्रृंखला व अन्य लाभ द्विपक्षीय समझौता के क्लॉज 18 के अनुसार दिनांक 1-11-87 से नहीं देना उचित एवं वैध है । श्रमिक कोई राहत प्राप्त करने का अधिकारी नहीं है । "

गौतम प्रकाश शर्मा , न्यायाधीश

नई दिल्ली , 13 अगस्त , 2007

This Industrial Dispute coming up for final hearing onMonday, the 9th day of July , 2007 , upon hearing the agruments of Thiru K. V. Ananthakrishnan , Advocate appearing for the Petitioner and Thiru S. Ravindran , Advocate appearing for M/ s . T. S. Gopalan & Co. for the management and upon perusing the all other connected material papers on record and this dispute having stood over till this day for consideration this Tribunal made the following:-

AWARD

का.आ. 2528.- औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 77/92 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

The Govt . of India have referred the following issue foradjudication by this Tribunal:

[सं. एल-12012/108/1992- आई. आर. बी- I ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 13th August , 2007

"Whether the management of State Bank of India is justified in dismissing Shri K. Ibrahim with effect from 14-3-1990 ? If not, to what relief is the workman entitled to ? "

2. The averments of the Claim Statement filed by the Claimant are as follows:

S.O. 2528.- In pursuance of Section 17 of the Industrial Dispute Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the award ( Reference No. 77/1992) of Industrial Tribunal , Chennai as shown in the annexure in the industrial dispute between the management State Bank of India and their workmen , received by the Central Government on 13-08-2007 .

[ No. L - 12012 / 108/ 1992- IR ( B - 1 ) ]

AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE THE INDUSTRIAL TRIBUNAL, TAMIL NADU, CHENNAI -600104

Thursday , the 19th day of July , 2007

PRESENT:

THIRU M. VENUGOPAL , B.A. M.L. , Presiding Officer/Industrial Tribunal ,. Tamil Nadu, Chennai - 104

Industrial Dispute No. 77 of 1992

The claimant Thiru K. Ibrahim was appointed as a Messenger in the Respondent bank in the year 1971. Due to his sheer sincerity and discharge of his duties diligently to the utmost sastisfaction of his superiors in the test conducted for promotion he was selected and promotedto the post of cashier in the year 1982 and was posted in the Guindy branch . The claimant was confirmed in the said post as a permanant employee . The claimant has put in 19 years of unblemished record of service without any lapse or irregularities with the respondent bank . The respodnent among other places is having an extension counter at Hindustan Teleprinters , Guindy of Officers ' Training School ( OTS ) at St. Thomas Mount . From the Guindy branch one officer , one clerk , one cashier and one sub staff used to be deputed in rotation to work at the extension counter on alternate days and the working hours is between 11.00 A.M. to 2.30p.m. The claimant was deputed as Cashier to the extension counter and was discharging his duties .

(Inthe matter of dispute for adjudication under Sec . 10(1) (d) of the Industrial Disputes Act, 1947 between the Workman and the Management of State Bank of India , Madras - 600001 ) .

BETWEEN

The Workman

Shri K. Ibrahim ,

No. 66 , State Bank Colony Extension,

3. While so , the caimant was shocked to receive a Suspension oRder dtd. 19-3-88 from the disciplinary authority (Dy. General Manager ) that the claimant was placed under Suspension pending enquiry into certain alleged acts of misconnduct reported to have been committed by him by missappropring the moneys paid by few individuals for effecting mail transfer , while the claimant was working as a Cashier at the Officers Training School extension counter attached to Guindy branch . This was Nanganallur , Madras - 6000 61 .

6570

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II -SEC . 3( ii) ] followed by a Charge sheetdt . 9-4-1988 . The claimant by his replydt . 16-3-88 denied all the charges levelled against him and stated that on perusal all the charges levelled against him and stated that on perusal of the relative challans it is found that the challans did not bear his initials and he was not aware how the alleged instances quoted in the Charge sheet has happend . The Respondent gave another charge sheertdt . 14-5-88 alleging misappropriation ofanamount paid by one of the constituents . The claimant submitted his explanationdt . 23-5-88 reiterating the earlier stand and totally denied all the charges of acts of omissions and is approporiation alleged against him . The respondent appointed Mr. W. S. Jayapal as the enquiry officer to conduct thedomestic enquiry . The claimant on the first sitting of the domestic enquiry conducted on 22-8-88 represented to the enquiry officer that the charges being of grievous and complicated nature , based on the report of the handwriting expert , the claimant being a sub staff promotee was not in a position to effectively defend the charges levelled against him. Therefore , the claimant sought permission to have a lawyer to defend his in the enquiry proceedings . The enquiry officer refused him request and insisted the claimant to appear in the enquiry proceedings . Therefore , the claimant was left with no other alternative except to attend the enquiry , undefended and victually remained a slient spectator without participating in the enquiry or cross - examining the witnesses . After , having conducted a farce enquiry , the enquiry officer found the claimant guilty of all the charges levelled against him.

authorities failed to consider the practice in vugue at the extension counter of the Officers Training School of the respondent that the working hours at the Officers training School is 11.00 A.M. to 2.30 . P.M. The Cashier viz . the delinquent employee used to avail a 10 minutes for his lunch in between 1.30 p.m. to 2.30 p.m. During the said period the counter was left in the custody of Mr. J. Samodaran the then Officer- in- charge of the extension counter.Evenduring the time when the claimant attend his nature call the counter used to be under the control of the said offier . (d) The claimant was several times requested and used by other staff of the branch and sometimes by higher officials to go to the military canteen stores to get the articles available at reduced prices , using claimants familiarity with them and his knowledge of speaking Hindi . On all such occasions the counter was operated by the Officer- incharge. So also , on such occasions , payments were made by Officer - incharge .. Subsequently with the information furnished by Offier - in- charge the scroll would be filled up by the claimant. Therefore , the claimant denies thathe at any point of time received the amounts from the person as alleged in the Charge Sheet and misappropriated the same, after intentionally omitting to put through the transaction in the cash scroll of the bank. ( e ) Since the charge sheet issued by the Respondent /pre-determined the guilty of the claimant it exposes the punitive mind of the respondent and is a basic defect . Therefore , the charge sheet is vitiated and void as held in AIR 1954 Bom 35 and 1969 LIC 735. ( F) The respondent having failed to keep an open mind against the charges levelled , the fundamental principles of natural justice is violated as held in 1974 2 SLR 466. ( g ) The charge sheet dtd . 9-4-88 and 14-5-88 issued to the claimant did not reveal and disclose the materials on which the respondent proposed to reply in the domestic enquiry nor did they contain list of documents relied upon and witnesses proposed to be examined . In the absence of these , the claimant was not able to defend himself and prove his innocense . This is against the principles of natural justice as reported in 1960 II LLJ 228 ; 1970 II LLJ 1 (SC) .(h) The appellate authority who received the claimant's appeal in his office on 4/5th May 1990 should have disposed of the appeal within 60 days from the date of receipt of appeal which is mandatory as per para 19.14 of theFirst Bipartite Settlement and should have also given a personnel hearing within 30 days . The appellate authority passed the order after 120 days . Hance the order of dismissal is invalid and is to be set aside and reinstement has to be ordered. ( i ) The signature of the claimant alone was sent to the handwriting expert for examination . Since various officers and other staff were present in the counter to discharge the duties in the absence of the claimant at the relevant time , all the signatures must have been sent to the handwriting expert . Having failed todo so , the respondent waspre-determined the issue and hence the entire enquiry proceedings is vitiated and the report of the handwriting 4. Against the findings of the enquiry officer , the claimant gave a written submissiondt . 8-9-1989 . The disciplinary authority by his letterdt . 2-12-88 concured with the findings of the enquiry officer , and proposed the punishment of dismissal without notice and at the claimant's request gave a personnel hearing on 22-1-90. The claimant gave a written submission reiterating his earlier stand denying all the charges levelled against him . The disciplinary authority by an orderdt . 14-1-90 dismissed the claimant from service . Against the order of dismissal the claimant preferred an appeal on 2-5-90 to the appellate authority . The appellate authority by an order dtd . 26-9-90 concurred with the findings of the disciplinary authority and dismissed the claimant's appeal. Against the said order, the claimant has raised the present industrial dispute and the same has been referred to this Tribunal for adjudication . At the time of dismissal the claimant was drawing a salary of Rs . 2700. The claimant is challenging the order of dismissaldt . 14-3-90 and confirmed by the appellate authority on 26-9-90 for the following among other grounds : ( a) The domestic enquiry conducted does not prove the guilty of the claimant since the evidence recorded and exhibits markeddo not prove the charages leavelled against the claimant . (b ) The domestic enquiry was conducted against all the principles of natural justice and vitiated and therefore liable to be set aside . ( c ) The 6571

भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II- खण्ड 3 ( ii) ]

In order to appreciate the issue which would arise for consideration in the dispute , it is necessary to set out how a Cashier functions in a Branch . The job of a Cashier , among other duties is to receive cash which is tendered alongwith remittance challan , affix ' Cash received ' Stamp, inital the challan and return the counterfoil of the challan duly signed to the person who tenders the cash and the remittance challan . As soon as cash is received, he has to make an entry in the Cashier's Scroll for the day serially numbered, mentioning the name of the remitter and the amountremitted. He is also required to mentioned the Serial No. in the challan so that at the end of the day , he will properly account for all the remittances recorded in the scroll . The Cashier is seated inside the wire me a shed cabin and no one can enter the Cashier's cabin .

7. The Guindy Branch of the Respondent Bank opened an Extension Counter in the Defence Officers ' Training School at St. Thomas Mount . The said Extension Counter was used to work on Mondays , Wednesdays and Fridays between 12 Noon and 2 P.M. The staff from the Guindy Branch were used to be deputed to the Extension Counter for attending to the transactions . When once the transactions were over , the staff used to return to the Branch and account for the transactions of the day . The petitioner was working as a Cashier in the Guindy branch of the Respondent bank and he also used to go to the Extension counter at the Defence Officers Training School at St. Thomas Mount .

8. On 26-10-1987 one R. Jayaraman remitted a sum of Rs . 3000/- at the Officers Training School Extension Counter for the credit of his Savings Bank Account at the Respondent's branch , at Kovilpatti . When the said Jayaraman visited Kovilpatti, he came to know that the amount had not been credited as the same was not received at the Kovilpatti branch . The said Jayaraman made a complaint tothe Respondent . There were similar complaints about certain other remittances made at the Officers Training School Extension Counter. When these complaints were looked into , it was found that the counterfoils of the relevant remittance challans were initialled by the petitioner and he was the Cashier in the Officers Training School Extension Counter on the relevant dates when the remittances in question were made .

expert cannot be proper without the comparision of the other signatures . PEX 2 to PEX 6 do not tally with the initiales appearing in PEX 7 to PEX 20. (j ) the disciplinory autherority's failure to furnish evidence on which the charges were based, documents relied upon and witnesses to be examined amounted to non- compliance not only to the mendatory provisions of the bipartite settlement but also the fundamental principles of natural justics as reported in 1968 ILLJ 106; 1963 ILLJ 708, AIR 1975 AP794; (1970) 21 FLR 127 , 1969 SCR 479 , 1970IILLJ 1 (SC) (k) None of the witnesses viz . Jayaraman (PW . 21 ) V. Toppo ( PW.4) Mohanan pillai (PW 3 ) and C.J. Daniel (PW.7) who deposed atthe enquiry stated that they gave the money only to the claiamant but only identified the counterfoil . In the absence of any positive evidence the conclusion of the enquiry officer is biased and vitiated . Since the delinquent employee was known to almost all the officials at OTS , it is easyto identify the delinquent. (1) The refusal by the enquiry officer to grant permission to engage a lawyer to defined himself as per the firstBipartite Settlement under para . 19. 12 (a ) ( ii ) deprived the claimant of a fair opportunity to defend himself as the claimant was unable to understand the highly technical and complicated report /evidence of the handwriting expert engaged by the respondent and also to cross examine him . The denial vitiates the entire enquiry proceedings as reported in 1972 I LLJ 465 , 1968 2 All ER 595; 1984 I LLJ 471 ; 1983 ILLJ 1 ( SC ), 1984 II LLJ 121 (Bomb). The refuseal was arbitrrary and capricious exercise ofdiscretion as reported in 1963 II LLJ 296 (SC) . (m) Both , the disciplinary authority and the appellate authority , did not take into consideration the past unblemsed record of services of 19 years of the claimant. This fact is evident from the absence of any reference to the past record in theirrespective orders . The Sastry Award in para 521 ( 10) read with Desai Award in para . 18.28 laid down that in awarding punishment by way of disciplinary action , the authority concerned shall take into consideration the gravity, the previous records if any , of the employee and any other aggravating or extenuating circumstrances that may exist . Under the award, consideration of past record is amandatory obligation cast on the respondent as reported in 1954 I LLJ 281. If the mandatory provision is not followed then the order of dismissal is liable to be set aside as per decisions reported in AIR 1954 Mad 51 ; 1973 II LLJ 58; 1958 KR 358. The punishment was thus imposed at their pleasure and hence it is abnoxious to natural justice .

5.The claimant denied all the charges and the charges are not proved at the domestic enquiry conducted for the said purpose, apart from the fact that the enquiry is vitiated by illegility and hit by principles of naturaljustice .

Theclaimant reserve his rights to file additional claim statement if necessary . It is therefore prayed that this Tribunal may be pleased to pass an award setting aside the dismissal order dt . 14-3-90 and reinstate the claimant with full backwages with attendant benefits and renderjustice.

9. On 9-4-1988 a Charge Sheet was issued to the petitioner charging him with the misconduct that in respect offourtransactions between 26-10-87 and 3-2-88 though the petitioner had received the cash and acknowledged it in the counterfoil ofthe remittance challan , he intentionally omitted to put the transactions through the Cash scroll , failed to account for the same in the books of accounts of the branch andmisappropriated the amount . Subsequently it also came to the knowledge of the Respondent that on 4-11-87, when the petitioner was working as Cashier in the Officers Training School Extension Counter , St. Thomas Mount, he had received a sum of Rs . 1800 from one Shubukaran along with the relative voucher for effecting a mail transfer and for which he had issued the counterfoil but 6. The averments of the Counter statement filed by the Respondent are as follows :

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[PART II-SEC. 3 ( ii) ] he intentionally omitted to put the transaction through the cash scroll for the day and failed to account for the sum of Rs . 1800 in the books of accounts of the Bank and misappropriatedopriated the amount . This charge was framed by the Charge sheet dated 14-5-88 . For the two charge sheets , the petitioner gave his explanation on 16-4-88 and 23-5-1988 .

grounds urged by him calls for interference of the order of dismissal by this Forum . With regard to para 8 ( a) , it is submitted that the material placed before the Enquiry Officer has clearly established the misconduct. The Respondent denies the allegation that the enquiry was vitiated or that there was any violation of principles of natural justice.

10. It is submitted that in respect of the 5 transactions coveredby the two charge sheets dtd. 9-4-88 and 14-5-88, on 17-5-88 the Respondent referred the disputed documents along with the specimen handwriting of the petitioner to the Director, State Forensic Science Department, Madras. On 1-6-88 the State Forensic Science Department gave its report opining that the Cashier's Scroll was in the handwriting of the petitioner and that the initials in the vouchers were also that of the petitioner.

14. With regard to grounds ( c) and ( d) in para. 8 of the claim statement, it is submitted that it was the petitioner who acted as a Cashier at the Officers Training School Extension Counter on 26-10-1987, 4-11-87, 11-11-87,3-2-88 and 5-3-88 and he signed the relevant counterfoils for the non-accounted remittances , that it was he who maintained the scroll on the relevant dates and as such he was liable to account for the same . The allegations made by the petitioner would not absolve him of his liability or exonerate him in hiscomplicity with the transactions.

15. The Respondent denies the allegation in paras 8(e) and (f) of the claim statement that the charge sheet was issued with a predetermined about the guilt of the petitioner. With regard to the ground in para 8 ( g ) of the Claim Statement, the Respondent submits that the petitioner was given due opportunity to vindicate his stand and defend the charges . With regard to the ground in para 8 ( h) ofthe Claim statement, it is submitted that time limit for the disposal of the appeal was only directory and not mendatory. The alleged grievance of the petitioner would notvitiate the order of dismissal .

11. The Petitioner was asked to appear for a domestic enquiry and it was held on 22-8-88, 29-8-88 and 12-9-88 . In the enquiry, M. Kasi , Scientific Assistant , Forensic Science Department was examined . Apart from the handwriting Expert , Thiru Jayaraman , U. Thoppu , Mohanan Pillai, C. J. R. Paul , other witnesses who were connected with the transactions were examined. The Enquiry Officer gave his findings on 16-11-1989 holding that the petitioner guilty of the charges . The report of the Enquiry Officer was received on 20-11-89 . On 3-10-89 the petitioner was furnished with acopy of the findings of the Enquiry Officer , a punishment ofdismissal was proposed and he was asked to appear for personal hearing on 19-12-89 . The personal hearing took place on 22-1-80. When the petitioner said that he would make his representation in writing . After considering all the relevant papers , on 14-3-90, the Disciplinary Authority passed orders dismissing the petitioner from service. Against the order of dismissal dated 14-3-90, the petitioner preferred an appeal dated 2-5-90 to the General Manager Operations . The petitioner was given a personal hearing in theappeal . On 26-9-90, the appeal preferred by the petitioner was dismissed and the order of dismissal was confirmed.

16. With regard to ground 8 ( i ) of the Claim Statement, it is submitted that it a is the petitioner was the Cashier must have initialled the counterfoils, when the petitioner disputed the initials and the writing on the scroll , the only question was whether the writings on the instrument were that ofthe petitioner and therefore the disputed documents with the admitted specimen of the petitioner's handwriting were referred to the Handwriting Expert. Therefore submission of the petitioner that the writings of other persons could have also been referred for comparison cannot be accepted .

12. It is submitted that the petitioner had acquiesced to the Order of dismissal and only in the latter part of the year 1991 he raised a dispute . The dispute was taken up for conciliation and on failure of conciliation, the present order of reference has been made . The averments in paras 3 to 5 of the Claim Statement are all matters of record and therefore do not require to be controverted.

17. With regard to the ground in para 8 ( k) , the examination of the witnesses was primarily to prove the counterfoil and their testimony was entitled to due credence. They had also indentified the petitioner as the one having received the remittances .

13. With regard to para. 6 of the Claim Statement, it is submitted that it is not the practice of the Respondent bank to permit the charge sheeted employees to engage a lawyer in the domestic enquiry. Similarly, the Bank does not appoint a legally trained person as a Presenting Officer. Hence the petitioner was not entitled to bring a lawyer to defend him in the enquiry . However , the charge sheeted employee was entitled to be defended by a co - employee or by a representative of a registered trade union . The petitioner, for reasons best known to him, defended himself and did not avail the services of either a union representative nor a co - employce . As regards para. 8 of the claim statement , it is submitted that none of the

18. With regard to ground in Para 8 ( 1 ) of the claim statement, it is submitted that denial of assistance of a lawyer would not invalidate the enquiry. With regard to ground in Para 8 ( m) of the claim statement, it is submitted thathaving regard the gravity of the charges proved, little would turn on the past record of service. The past record will have relevance only when the charges proved, by themselves would not merit the extreme punishment. In the instant case , the punishment of dismissal cannot be said to be disproportionate to the charges proved . It is not [भाग II- खण्ड 3 ( ii ) ]

correct to state that the Punishing Authority did not take into consideration the past record of service of the petitioner.

19. It is submitted that the conduct of the petitioner has imparted the confidence of the Respondent to repose onthe petitioner . The petitioner should not be granted any relief much less the relief of reinstatement . It is therefore prayed that this Tribunal may be pleased to pass an award upholding the dismissal of the petitioner and rejecting his claim.

20. On the side of petitioner , Exhibits W 1 to W83 were marked . On the side of Respondent/Management , Exs . M. 1 and M2 were marked. No oral evidence was adduced on both sides .

21. The point that raised for consideration is "Whether the management of State Bank of India is justified in dismissing Shri K. Abrahim with effect from 14-3-90 ? If not, to what relief is the workman entitled to ?" .

22. At the outset , it is to be mentioned that this Tribunal on the Preliminary issue whether the Domestic enquiry was fair and proper , has held on 17-3-97 that the Enquiry findings were vitiated , since the findings of the enquiry were given in an 'Exparte ' enquiry . As against the preliminary order passed by this Tribunal on 17-3-97 in I.D. No. 77/92 , the Respondent/Company has filed W. P. No. 15285/97 , before the Hon'ble High Court, Madras and Hon'ble High Court dismissed the Writ petition on 4-12-2003 and confirmed the Preliminary order passed by this Tribunal . The Respondent/Company filed Writ appeal No. 1508/2004 before the Hon'ble High Court and the Hon'ble High Court on 10-4-2007 has allowed the Writ appeal and not accepted the reasonings that weighed the Industrial Tribunal as well as the orders passed in W.P. No. 15285/97 dtd. 4-12-2003 and set aside the same with a direction to this Tribunal to complete the proceedings in I. D. No. 77/92 and passed orders in accordance with law within a period of 3 months from the date of receipt of the copy of the order after affording opportunity to both parties . TheOrder of the Hon'ble High Court passed in writ Appeal No. 1508/2004 dtd . 10-4-2007 was received by this Tribunal on27-4-2007.

23. On behalf of the petitioner , a memo was filed before this Tribunal on 21-5-2007 interalia stating that the Central Government amended the Industrial dispute act and constituted Central Government Industrial Tribunal- cum-Labour Court , Chennai to decide all the disputes relating the Central Government organisation , including banks and all the cases were transferred to Central Government Industrial Tribunal- Cum- Labourt Court , Chennai and the Respondent/ State Bank of India , being a statutory Body and Central Government organisation , now the jurisdiction vest with the Central Government Industrial

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Tribunal - Cum- Labour Court , Chennai , and a request was made to pass suitable orders in respect of the jurisdiction relating to the Respondent/ Company .

24. At this juncture , it is relevant to point out the Hon'ble High Court in ROC No. 1360/2000-3 dated : 17-8-2000 has directed this Tribunal to transfer the cases relatingto the Central Government references for which no hearing was held so far . (As per list furnished by the Govt . of India) now pending on the side of this Tribunal to the newly formed Central Government Industrial Tribunal -cum- Labour Court at Chennai - 6 .

25. On 21-5-2007, this Tribunal directed the parties to address arguments relating to the jurisdiction issue along with the main case , as one of the issues raised in the dispute and posted the matter on 31-5-2007 . On 31-5-2007, the parties have not addressed the arguments on the jurisdiction aspect since it was brought to their Counsel's notice about the High Court's ROC No. 1360/2000-03 dtd. 17-8-2000 wherein this Tribunal was directed to transfer Central Government reference cases for which no hearing was held so far to the newly formed Central Government Industrial Tribunal , Chennai - 6 .

26. POINT : The learned counsel for the Petitioner submits that the Petitioner Claimant was appointed in the Respondent/Bank in 1971 as a Messenger and that he was promoted as Cashier in 1982 and was posted in the Guindy Branch and that the Respondent/State Bank of India is having an Extension Counter at Hindustan Teleprinters , Guindy andOfficers Training School at St. Thomas Mount and from the Guindy Branch. One officer , one Clerk , one Cashier and one Sub - staff normally used to be deputed in rotation to work at the Extension Counter on alternate days , the working hours being between 11.00 A.M. to 2.30 P.M. and the petitioner /Claimant was deputed as Cashier to the Extension Counter and was performing his duties & that the petitioner /claimant received the suspension order dtd. 19-3-88 from the Deputy General Manager of the bank (Disciplinary Authority ) stating that the petitioner was placed under suspension pending enquiry into- certain alleged acts of misconduct in misappropriating the moneys paid by some individuals for effecting the mail transfer and that the petitioner was given the charge sheet Ex . W. 73 dtd. 9-4-88 and that the petitioner gave a reply Ex. W. 74 dtd. 16-4-88 denying the charges made against him and thatEx . W. 75 dtd. 14-5-88 another charge sheet was given to the petitioner alleging misappropriation of an amount paid by one of the constituents and the petitioner furnished his explanation dtd. 23-5-88 reiterating the earlier stand and denying all the charges pertaining to acts of omissions and misappropriations and domestic enquiry was held by the bank and the petitioner sought permission to have the assistance of a lawyer to defend him in the enquiry proceedings , which was refused by the Enquiry Officer 6574

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[PART II-SEC. 3 (ii) ] andthe petitioner Inot participate in the enquiry or crOSS- examined the witnesses and the Enquiry Officer found the petitioner guilty of all the charger and the Disciplinary Authority concurred with the findings of the Enquiry Officer and the order of the Appellate Authority is Ex . W.83 dt. 26-9-90 and that the domestic enquiry does not prove the charges levelled against the petitioner and the domestic enquiry was conducted against the principles of natural justice and that the signature of the petitioner alone was said to the Handwriting expert for examination and other officers and staff who were present in the counter to discharge the duties in the absence of petitioner at the relevant time , their signatures were not sent to the Handwriting expert and this failure has vitiated the Enquiry proceedings in entirety and therefore the Handwriting expert report is not proper without comparing the signature ofother staff members and the witnesses Thiru Jayaraman , Thiru Toppo , Thiru Mohanan Pillai , C. J. Daniel , have only identified the counterfoil and that the Appellate authority did not take into consideration the past record of 19 years of unblemished service of the petitioner and that the Appellate authority has passed order after 120 days , and thatthe appellate authority has not disposed of the appeal within 60 days from the date of receipt of appeal which is mandatory as per the First Bipartite Settlement and that the Appellate authority should have also given personal hearing within 30 days and the failure to observe the requirement of Bipartite Settlement has made order of dismissal as invalid and that the reinstatement of the petitioner must be ordered .

enter the transactions through the cash scroll , resulting in his failure to account for the same , in the books of the accounts of the Respondent/bank and misappropriatedthe amount and again on 4-11-87 when the claimant/petitioner was serving as Cashier in the OTS Extension counter at St. Thomas Mount, he was in receipt of Rs . 1,800/-fromMr. Shubukaran along with the Corresponding voucher for affecting a mail transfer and for which the counterfoil was issued by the petitioner/claimant , but he intentionally omitted to enter the said transaction in the Cash scroll for the day resulting in his failure to account for Rs . 1,800 in the accounts book of the Respondent/ Bank and misappropriated the same and for the two charge sheets 9-4-88 and 14-5-88 the petitioner furnished his explanation on16-4-88 and 23-5-88 and that the Respondent/bank sent to the disputed documents along with the specimen Handwriting of the Claimant/petitioner to the State Forensic Department and the Forensic State Department submitted his report opining that the Cashier Scroll was in the handwriting ofthe Claimant/petitioner and that the initials in the vouchers were also that of the Claimant/petitioner and that in thedomestic enquiry conducted , witnesses connected with the transaction and the Scientific Assistant of Forensic Department were examined and the Enquiry Officer submitted his finding on 16-9-89 and as againstthe orders ofdismissaldt . 14-3-90, the petitioner filed an appeal and the same was dismissed on 26-9-90 and that the order ofDismissal was confirmed and that the petitioner was not entitled to have an assistance of a lawyer to defend him in the enquiry and that the delinquent employee was to be defended by a co - employee or by a representative of a registered Trade Union and that the petitioner defended himself and did not utilise the services of a co - employee or a Union representative and that the petitioner /claimant signed the relevant counterfoils for the non - accounted remittances and that the petitioner only maintained the scroll and the relevant dates and he acted as Cashier at the OTS Exteneion counter on 26-10-87 , 4-11-87, 11-11-87 , 3-2-88 and 5-3-88 respectively and that the time limit prescribed for the disposal of the appeal is only directory and not mandatory and that the past record will have relevance only when the charges proved would not require the extreme punishment and the punishment of dismissal of the petitioner /claimant cannot be said to be disproportionate to the charges proved and that the conductof the petitioner has impaired the confident of the respondent and hence pray for upholding the order of dismissal of the petitioner and consequently to reject the claim of thepetitioner .

28. In Writ Appeal No. 1508/04, the Hon'ble High Court on 10-4-07 has observed in Para 16 & 17 as follows:

27. The Learned Counsel for the Respondent/Bank urges that the Petitioner/Claimant was working as Cashier in the Guindy Branch of the Respondent/Bank and the claimant also used to attend the Extension Counter at the Officers Training School at St. Thomas Mount and that Thiru R. Jayaraman on 26-10-87 remitted an amount of Rs . 3,000 at the Officers Training School Extension Counter for the credit of his S. B. Account at Respondent/Bank's branch at Kovilpatti and that the constituent Mr. R. Jayaraman made a complaint to the Respondent/Bank that He came to know that the amount of Rs . 3,000 was not credited at the Kovilpatti Branch of the Respondent/Bank as the same was not received and there were also other complaints regarding certain other remittances made at the OTS Extension counter and on looking into the complaints , it came to light that the counterfoils of the relevant remittance challans were initialled by the Claimant/Petitioner and he was the Cashier in the OTS Extension Counter on the particular dates when the remittances were made and therefore on 9-4-88 a charge sheet was issued to the claimant alleging misconduct in regard to the four transactions between 26-10-87 and 3-2-88 and the Claimant though he received the Cash and acknowledged the same inthe Counterfoil of the remittance challan , he omitted to

" It is true that P. W. 1 is an expert and he was examined in the presence of the second respondent , In other words , during the entire Chief examination , the 6575

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[भाग II- खण्ड 3 ( ii ) ]

the petitioner/claimant was given the opportunity to have the assistance from anyone and he was also given the sufficient timeto go through the evidence of P. W. 1 and the same was not availed of.

workman was very well present . In order to get clarification/details from any one , including a lawyer , the Enquiry Officer granted sufficient time and adjourned the enquiry . However , admittedly , even after providing sufficient time , the second respondent did not examine P. W. 1. In the earlier part of our order ,. We referred to the fact that the workman was permitted to have the assistance of any member of office bearer of a registered Trade Union . The fact remains , he failed to utilise the same . In these circumstances and in view of the factual details and also of the fact that he was granted adequate time to get assistance from any one , including his lawyer with regard to the evidence of P. W. 1 we are unable to accept the conclusion arrived at by the Tribunal as well as the leaned single Judge."

30. Ex. W. I dtd. 1-6-1988 is the report of the Tamil Nadu Forensic Science Laboratory. In Ex. W. 1 Report, it is clearly mentioned that the person who wrote the Red enclosed initials , writings and signatures stamped and marked S. 1 to S.80 also wrote the red enclosed writings and initials similarly stamped and marked Q 1 to Q.6. In Ex. W. 1 report of the Forensic Science Laboratory, in the reasoning sheet it is mentioned that " S1 to S. 80 also wrote thewritings and initials marked Q I to Q6 and that both the standard and questioned writings , initials and signatures have been freely and speedily written and agree cumulatively in the handwriting characteristics on an intesse copmarsion and the characteristic agreements include among other things the following:

1. Themanner of terminating the initials , letters ' y' , ' d' , ' h ' , ' r ' , and figures ' 0 ' , ' 4 '

2. This skill of writing

3. The alignment between the letters in the initials and in the words ' Three ' , ' Thousand' .

4. The location and manner of making ' T ' , crossing.

5. The connection between the letters in the initials; in the word ' only ' and figures ' 2 ' and . '6' .

6. In the detaileddesigns , such as the beginning and formation of loops and curves in the letters 'J' , ' E' , ' M' , ' h ' , ' r' , ' e ' , ' d ' and figures ' 2 ' , ' 8 ' , '3', ' 4' .

It is relevant to point out that out of 14 sittings , he participated in seven sittings .Even in the 14th sitting, the workman has admitted that had has gone through the proceedings recorded on 8-10-1988 , 17-10-1988 , 31-10-1988,7-11-1988 , 16-11-1988 and 23-3-1989 . It is also available from the enquiry proceedings that the Enquiry Officer has informed the Second Respondent that if he so desires , he can very well bring his own handwriting expert as a reference witness . On going through the materials available in the enquiry proceedings and in view of the fact that the workman is not entitled assistance of a lawyer of his choice and also of the fact that in the enquiry he was afforded sufficient time to go through the evidence, particularly the evidence of P. W. 1 , we are unable to agree with the conclusion of the Tribunal as well as the learned single judge . On the other hand, we are of the view that inspite of affording sufficient opportunity , the second respondent failed to utilise the same.

Further the Hon'ble High Court in writ appeal No. 1508/04 has inter alia held that .

"There is no specific provision either in the Bye Laws , Criculars , Guidelines enabling the Workman to have the legal assistance and having participated on several sittings , the workman abandoned the enquiry after certain stage , and copies of documents were also either supplied or allowed to be perused by the workman and already adequate opportunity was given to him , and that it is an exceptional case and the Management/Bank is justified and in approaching this Court even against the order passed in a preliminary issue etc. "

31. According to the learned counsel for the Petitioner, in Ex. W. 1 Forensic Science Laboratory Report dt. 1-6-1988 Thiru K. Ramachandran , Asstt . Chemical Examiner to Government and Assistant Director Forensic Science Department, Madras-4 and Thiru M. Kasi , Scientific Assistant Gr . I have signed and only Thiru M. Kasi , Scientific Assistant Gr . I was alone examined and the other individual Thiru K. Ramachandran Asstt . Chemical Examiner was not examined in the domestic enquiry and that the Ex. W. 1 Forensic Science Laboratory report of the Expert Dt. 1-6-1988 is at best only recommendatory in nature and it should not be relied upon and the said report can only be used for a supportive evidence and the said report is not a conclusive one . In support of his contentions , the learned counsel for the petitioner relied on AIR 1973 Supreme Court 2200 between Ram Narain Vs. State of Uttar Pradesh , wherein it is held that ,

"The opinion of a handwriting expert given in evidence is no less fallible than any other expert 29. From the Hon'ble High Court's order passed in WritAppeal No. 1508/2004 dtd . 10-4-2007, it is evident that

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[PART II-SEC. 3 ( ii ) ) opinion. But such opinion is worthy of acceptance if there is internal or external evidence relating to the writing in question supporting the expert's view. The question in each case falls for determination on the court's appreciation of evidence . AIR 1967 SC 1326 Followed."

opportunity given to the petitioner/Claimant in the domestic enquiry to cross- examine P.W.1 Thiru M. Kasi , Scientific AssistantGr. I, the same was not made use of by the Petitioner/ Claimant and as such , the Ex. W. I Forensic Science Laboratory Expert reportdt. 1-6-1988 is an unassailable one . Moreover, thenon-examination ofThiru K. Ramakrishnan Asstt. Chemical Examiner toGovernment, who signed in the Ex. W. 1. reportis not fatal to the case on hand .

32. Thiru M. Kasi, Scientific Assistant Gr . I was examined as P. W. I in the domestic enquiry and that he has stated before the Enquiry Officer that the questioned documents are marked as Q1 to Q6 and admittedly genuine signatures , initials and writings are marked S. I to S80 and to a query whether the Forensic Science report was based on the original counterfoils marked as P. Ex .. 2 to P. Ex . 40. The answer of the P. W. I M. Kasi was yes . Astt . as matter of fact , PW1 Thiru M. Kasi , Scientific Asst . Gr . I was not cross-examined by the petitioner/claimant on 12-9-1988 .

35. It is represented on behalf of the Petitioner/ Claimant that in Ex . W. 2 to W. 6 Counterfoils viz . Q. 1 to Q. 6 only initials are seen and they are not the signatures of the Petitioner /Claimant as Cashier, at this juncture , it is to be pointed out that admittedly genuine signatures , initals andwritting were marked as S. 1 to S. 80 and the questioned documents were marked as Q.1 to Q.6 as spoken to by P. W. 1 Mr. M. Kasi , Scientific Asstt. Gr . I when Ex . W. 1 Forensic Science Laboratory Expert report dtd. 1-6-88 speaks of the person who wrote the Red enclosed initials, writings and signatures stamped and marked S. I to S. 80 also wrote the Red enclosed writings and initials similarly stamped and marked Q. 1 to Q 6, it is futile to contend otherwise , when that too P. W. 1 Mr. M. Kasi , Scientific Asstt. Grade I was not corss - examine by the Petitioner/ Claimant and therefore , the conention of the Petitioner/ Claimant in this regard is not accepted by this Tribunal .

36. Ex. W. 73 is the Charge Sheet dtd . 9-4-88 givento the Petitioner /Claimant alleging acts of misappropriations , involving the Respondent/bank in serious loss , which are prejudicial to the interest of the bank . In Ex . W. 73 dt . 9-4-88 the allegations made against the Petitioner /Claimant are---

1. That on 26-10-1987 , he received a sum ofRs . 3,000 on behalf of the bank from Shri R. Jayaraman , Defence Personnel , attached to Officer's Training School , along with the relative voucher , for effecting a Mail Transfer to Kovilpatti Branch of the bank, for credit of his Savings Bank Account No. 46/8973 and issued the Counterfoil immediately, and intentionally omitted to put this transaction through his Cash Scroll on that day and thus failed to account for the sum of Rs . 3,000 to the Bank and misappropriated the same.

33.On 19-9-1988 in the Fourth Sitting ofthe Domestic Enquiry the Petitioner/Claimant has stated that he is unable to cross - examine Mr. M. Kasi , P.W. 1. Scientific Assistant, Gr. I ofthe Forensic Science Department. In the Fifth Sitting of the Domestic Enquirydtd. 26-9-88 , the Petitioner/ Claimant requested permission to engage a lawyer to complete the enquiry and the Enquiry Officer has stated that permission to engage a lawyer was refused and that the claimant was advised several time and that he was directed to participate in the enquiry without a lawyer and the Petitioner was permitted to engage anyone of the union representatives as his defence and that the enquiry was adjourned on 3-10-1988. In the Sixth Sitting of the Domostic Enquiry on 3-10-88 , the Petitioner/claimant was not present and hence the enquiry as adjourned to 17-10-1988 , and thatthe petitioner was advised by a letter dtd . 3-10-1988 to appear for the enquiry . For the Seventh Sitting on 17-10- 1988, the Petitioner/Claimant did not turn up, though he acknowledged the receipt of the letterdt . 3-10-1988 and thatthe enquiry proceeded further and Thiru S.Jayaraman was examined as P. W. 2. P. W. 2 Thiru S. Jayaraman inthe domestic enquiry has stated that he used to send money to the Kovilpatti State Bank and that on 26-10-87, he remitted Rs . 3,000 in the OTS Extension Counter and that he will identify the individual if that person is shown to him and that person who acted as Cashier on that day alone has giventhe receipt and that on enquiry at Kovilpatti Branch ofthe bank that he has not received the money he wrote a letter to the Guindy Branch Manager of the Bank and like him Thiru ( 1 ) C. J. Paul , (2) Mohanan Pillai (3 ) Subkaran (4)Toppo who remitted money complained that money was not received at the respective place of destination and they got back the money through the bank .

2. On 11-11-1987, that he received a sum of Rs . 700 on behalf of the bank from Sub U Toppo , APTC , Officers Training School , Madras - 37 , along with the relative voucher for effecting a mail transferto Jehangirabad branch and issued the Counterfoil immediately and intentionally omitted to put the transaction through his cash Scroll on that day and thus failed to account for the sum of Rs . 700 to the bank and misappropriated the amount .

34. Ex . W.2 to W.6 are the Counterfoils of the Challans Dt. 28-10-1987,3-2-1988,5-2-1988,4-11-1987 and 11-11-1987 respectively . As far as the present case is concerned , this Tribunal is of the considered view that inspite of sufficient

3. On 3-2-88 , that he received a sum of Rs . 500 on behalfofthe bank from Sri . B. Mohananpillai , Ground 6577 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II- खण्ड 3 (ii) ]

Superintendent , Estt . Section , Officers Training School , Madras -37 along with the relative voucher for effecting a mail transfer to the Bank's Quilan Branch and issued the Counterfoil immediately and intentionally omitted to put this transaction through his cash scroll on that day and thus failed to account for the sum of Rs . 500 to the bank and misappropriate the amount .

4. That on 5-2-88 , he received a sum of Rs . 400/- on behalf of the bank, along with relative Voucher from Sri C. J. Paul , G. D. Goy , Officers Training School , Madras-37 for effecting a mail transfer to the Bank's Tiruchur branch and issued the Counterfoil immediately and he intentionally omitted to put the transaction through his cash scrool on that day and thus failed to account for the sum of Rs . 400/- to the bank and misappropriated the amount .

it is stated that he deposited a sum of Rs . 1800/-on 4-11-87 for sending a mail transfer to SBI , Damtel to credit in this Account No. 20248 and on enquiry , he was informed that the M. T. for Rs . 1800/- was not yet received by the bankers and the amount was not credited by the bankers in his account and requested for the amount to be paid to him at the earliest . In Ex . W66 xerox copy of Complain of Mr. Shubkarandt . 9-5-88 , it is seen that there is an endorsement that ' no entry in OTS Scroll for Rs . 1800 Ex . W 65 is the Xerox copy of Respondent Bank's Guindy Branch Debit OTS Cash balance accountdt. 26-10-87 for Rs. 50000 only. Ex. W53 is the Complaintdt . 21-3-88 received from Sub U. Toppo, APTC Officers Training Academy Madras-37 addressed to the Manager , State Bank of India , Guindy branch, Chennai, wherein it is mentioned that he depostied Rs. 700 in the Respondent/Bank for M.T. in favour of Account No. 48/72 - NC1178 Mrs. Philomena Toppo SBI , Jehangrabad, Bhopal on 11 , November 1987 and that it is not a matter of regret that this particular amount was not credited so far in the above mentioned account etc. Ex. W 63 is the Bank's cheque dt . 21-4-88 issued in favour of U. Toppo for Rs . 700 Ex. W64 is the Banker's cheque issued by the Respondent/Bank in favour of Mr. Shubkaran for Rs . 1800 dt . 20-5-1988 .

IntheExplanation Ex. W. 74 dt. 16-4-1988 the Petitioner/ Claimant has interalia stated that when he perused the relative challan , he found that they did not bear his initials and that he was not aware as to how the incidents cited had happended. It is significant to point out that Ex. 74 explanation dt. 16-4-88 , submitted by the Petitiioner /Claimant he has stated that he was appointed as a Messenger in the year 1971 and he appeared of the Promotional test in 1982 and came out successful and then he was posted as a Cashier at Guindy Branch where he was discharging his duties deligently and sincerely. Ex. W. 75 is the Charge sheet dt . 14-5-88 issued by the Respondent/bank to the Petitioner/ Claimant alleging that on 4-11-1987 while the petitioner was working as Cashier dtd . OTS Extention Counter of the Respondent /Bank attached to Guindy Branch , he received a sum of Rs . 1,800/- on behalf of the bank from Sri Shubkaran G.D. Goy , OTA, Madras - 37, along with the relative voucher for effecting a mail transfer and issued the Counterfoil immediately that he intentionally omitted to put the transaction through his Cash Scroll on that day and thus failed to Account for the sum of Rs . 1,800/- to the bank and misappropriated the same etc.

38. Ex. W 52 is the letter of Mr. C. J. Paul dated 11-3-88 addressed to the Guindy branch of the Respondent Bank, wherein it is mentioned that a sum of Rs . 400/- remitted on 5-2-1988by Mail Transfer through OTS Extension Counter to Tiruchur branch for credit of S. B. Account No. 038/8677 has not reached the constituent's mother Mrs. C. C. Thandamma . Ex . W 50 is the Banker's Chequedt . 14-3-88 in favour of Mr. C. J. Paul , for Rs . 400 issued by the Respondent/ Bank. Ex . W 51 is the letter of Mr.B. Mohananpillai dt . 24-2-88 addressed to the Manager ofthe Respondent/bank (OTA Extension counter ), Madras- 37wherein it is mentioned that a sum of Rs . 500 sent in Mail Transfer to the State Bank of India, Quilan Main branch A/c No. 36481/821 name B. Unnikrishnan on 3-2-1988 through State Bank of India , OTA Extention counter and till19-2-88 the money was not credited into the above said account . Ex . W 49 is the Telegraphic transfer application in favour of Mr. B. Unnikrishnandt . 14-3-88 issued by the State Bank of India, Guindy branch, wherein it is mentioned that Rs . 500 was remitted on 3-2-1988 at OTA extention counter by B. Mohanan Pillai , now sent to beneficary by T. T. Ex. W 48 is the banker's chequedt . 14-3-88 issued in favour of Mr. R. Jayaraman for Rs . 3000/-by the State Bank ofIndia, Guindy branch, Madras . Ex . W 27 to W 39 are Cashier's Receipt Scroll xerox copies dated 1-8-87, 10-8-87 , 10-8-87, 13-8-87, 13-8-87, 14-8-87, 14-8-87, 14-8-87,21-8-87, 27-8-87, 17-12-87 and 17-12-87 respectively. Ex. W54 is the Cashier's payment scroll page 19 is dated 6-11-1987 . Likewise , Ex. W 54 to W 64 are the Cashier's payment Scroll relating to P. 19, P. 21 , P. 22, P. 23 , P. 27, P. 29 , P. 31 , P. 33 , P.15 on different dates ranging from 6-11-87.

37. Ex M. 1 Xerox copy ofcomplaint from Mr. Jayaram which was received by the Respondent/Bank, Guindy Branch on 21-12-1987. In the said letter of complaint , the constituent ofthe bank Thiru Jayaraman has stated that he remitted Rs . 3,000/- in SBI , Guindy OTS Extention Counter Branch on 26-10-1987 and that the same was not received at the Kovilpatti branch of the respondent bank and requested the Branch Manager , to look into the matter. Ex . M. 2 is the suspense account Debit Voucher for Rs. 1800 dt . 20-5-1988 . By Ex . M2 , the Respondent/Bank has refuneded the sum of Rs . 1800 /- which sum was earlier remitted by Shubkaran . Ex . W66 is the letter dt . 9-5-88 of Shubkaran addressed to the Respondent/Bank , Guindly branch OTA Extention Counter , Madras-37 wherein 6578

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[PART II-SEC . 3 ( ii) ]

standard of proof required for a criminal trial . Acase forjudicial review was , thus clearly made -out ." 39. The learned Counsel for the Petitioner submits that enquiry report is a document and that the Enquiry Officer in his report should indicate the conclusions exactly and also to spell out the reasons for coming to the said conclusion and in support of his contentions placed reliance onthe decision 1964 S. C. R. 506 between Khardah Co. Ltd. V. Their Workmen , wherein it is held as follows:

42. In the case on hand , the constituent Mr. Shubkaran was not examined as witness in the domestic enquiry . According to the learned counsel for the Respondent/bank , the bank need not examine its customer to prove the charges and cited the decisions (2000) (2) LLJ 1373 State Bank of India and Tarun Kumar Banerjee and others , wherein it is observed as follows :

" Itis the duty of the enquiry officer in and industrial enquiry to record clearly and precisely his conclusions and to indicate briefly the reasons therefore so that the Industiral Tribunal can judge whether they are basically erroneous or perverse."

"The circumstances like non - examination of a customer of theBank or non -production of an alleged confessional statement, on which the Tribunal placed reliance were irrelevant , the Supreme Court added . " 40. The Learned Counsel for the Petitioner drew the attention of this Tribunal to the Decision 1969 IS . C. R. 735 , Central Bank of India Ltd. New Delhi V. Shri Prakash Chand Jain, wherein it is observed as follows:

43. It is represented on behalf of the Respondent/ bank that the burden of proof rests on the Petitioner/ delinquent based on the explanation/ stand taken by him and in this regard the Respondent/bank relied on the decision AIR 1997 ( SC ) 2274 Orissa Mining Corporation and another , V. Ananda Chandra Prusty , where it is held as follows:

A domestic tribunal though not bound by the technical rules about evidence contained in the the Indian Evience Act cannot ignore substantive rules wihich would form part ofprinciples of natural justice . The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of such basic principles which a domestic tribunal cannot disregard . The previous statement of a witness is not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged. A finding by the domestic tribunal based not on substantive evidence but on heresay, is perverse , because heresay is not legal evidence . ( 743 C- E, 745 G -H)" .

"In a disciplinary or a departmental inquiry , the question of burden of proof depends upon the nature of charges and the nature of explanation put forward by the delinquent officer . In this sense , the learned counsel for the appellant may be justified in complaining that the standard of proof stipulated by the High Court in this case sounds in appropriate to adisciplinary inquiry .At the sametime we must say that certain observations made by the enquiry officer in his report do lend themselves to the criticism offeredby the High Court.

41. The learned counsel , for the Respondent/bank urges that in Domestic enquiry , the nature of evidence required is one of preponderance of probabilities and in support ofhis contention, reliance was placed on the decision (2005) 3 SCC 241 @ 253, Cholan Roadways Ltd. Versus G. Thirunansambandam , wherein it is held as follows :

" It is now well settled that a quasi -judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case , furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did no apply the priciple of resips loquitur which was relevant for the purpose of this case and , thus , failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germance for determining the issue , namely , that the passengers of the bus were mandatorily required to be examined . The Industrial Tribunal further failed required to apply the correct standard of proof in relation to a domestic enquiry , which is 'preponderance of probability ' and applied the

On a consideration of the totality of the facts and circumstancses of the case including the nature of charges we are not inclined to interfere in the matter . The position with respect to burden of proof is as clarified by us hereinabove viz . , that there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry . The burden of proof depends upon the nature of explanation and the nature of charges . In a given case the burden may be shifed to the delinquent officer, depending upon his explanation . For example take the first charge in this case . The charge was that he made certain false noting on account of which loans were disbursed to certain ineligible persons . The respondent's case was that those notings were basedupon certain documents produced and certain records maintained by other employees in the office . In such a situation it is for the respondent to establish his case. The department is not expected to examine those other employees in the office to show that their acts or records could not have formed the basis of wrong notings made by the respondent ." 6579

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[भाग II- खण्ड 3 ( ii ) ]

46. The learned Counsel for the Respondent/Bank cited the decision 1999 (2) LLJ 194 , Management of Catholic Syrian Bank Ltd. and Industrial Tribunal, Madras - 104 and another , wherein it is held as follows:

44. The learned Counsel for the Respondent/Bank invited the attention of this Tribunal to the decision 2005 (3 ) SCC p . 254 , Divisional Controller , KSRTC ( NWKRTC) Vs. A.T. Mane , wherein it is observed as follows :

"Labour Law-Penalty /Punishment-Misappro- priation of funds by delinquent employee- Punishment that may be awarded-Factors to be considered--Loss of confidence as the primary factor and not the amount of money misappropriated-Scope of Judicial review- Sympathy or generosity as a factor- Impermissibility-Held , when an employee is found guilty of misappropriating a corporation's funds , there is nothing wrong in the corporation losing confidence or faith in such an employee and awarding punishment of dismissal-In such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefor with the quantum of punishment-Service Law-Industrial Disputes Act, 1947-S.11 . "

45. The learned Counsel for the Respondent/Bank submits that the petitioner/claimant as Cashier was holding the position of Trust where honesty and integrity are the elementary requirements of functioning and in as much as the petitioner/employee has committed serious misconduct he should be dealt with firmly and sympathy should not be shown to him . In support of his aforesaid contention , the learned Respondent/Bank's Counsel relied on 2007 LLR. 1 State Bank of India and others Vs. Ramesh Dinkar Punde , wherein it is held as follows :

"Industrial Disputes Act , 1947-Sec . 11 - A- Powers of Industrial Tribunal to interfere with quantum of punishment-Clerk in Bank dismissed from service on proved misconduct of crediting his account with money that should have been credited to account customer and withdrawing such money and utilising for himself-Industrial Tribunal directing reinstatement of employee with continuity in service and 50 % of back wages because punishment was harsh and misproportionate to gravity of proved misconduct finding that employee committed fraud on customer was established in Domestic Enquiry and same was not questioned before Industrial Tribunal Confidence of customer is paramount for success of Banking business-Continuing in employment a person who committed fraud on customers would be prejudicial to interest of Bank-Industrial Tribunal is Judicial Forum who records conclusions based on findings and available relevant materials - Discretion vested in Tribunal to interfere with quantum of Punishment should be properly exercised by discharging its functions judicially-Discretionary power does not mean Licence to direct re- instatement even where it is not warranted and to set aside Order of Dismissal when records do not warrant such setting aside of Order of Dismissal-Industrial Tribunal cannot interfere with quantum of punishment if proved misconduct is grave in nature warranting dismissal from service discretionary powers to interfere with quantum ofpunishment can be exercised only when it is established that proved charges and penalty imposed are not proportionate to each other after considering all aspects - Failure to consider past conductby itself is not sufficient to hold Order of Dismissal as not warranted where proved misconduct is grave -employee cannot claim right to commit fraud during course of employment- Employee should maintain such ethical standards embodied in Rules and Regulations - Ethical standards cannnot be abandoned on plea that justice should be rendered with mere employee should maintain minimum standard of integrity- Award of reinstatement and back wages to Workman who did not maintain minimum standard of integrity would amount to rewarding fraudulent and dishonest conduct and would be knocking at integrity and honesty of majority of workmen--- Order of Dismissal cannot be invalidated on ground of sympathy where such sympathy would "Dismissal- From service after holding enquiry- Respondent , bank -Officer , was a party to the fraud-He has failed to apply the material information to protect the interests of the bank- Respondent challenged his dismissal by filing a Writ petition- On a reappraisal of the evidence . The High Court set aside the orders of the disciplinary authority and the appellate authority-SLP filed by the bank-Accepted by theApex Court- It was impermissible for theHigh Court to re - appreciate the evidence considered by the enquiry officer , disciplinary authority and the appellate authority- The findings of the High Court ran to the teeth of the evidence on record- Officer of the bank holding position of trust deserved no leniency in punishment-Active connivance of the respondent was clear in the issue of term deposit receipts to individuals against funds received from Trust and in providing overdraft facilities to the individuals-Not only on law but on facts also the High Court erred by interfering with the dismissal of the respondent from service State Bank of India Officers Service Rules , Rule 32(4) ." 6580

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be misplaced because of proved grave misconduct of fraud committed by employee ." 47. The Respondent's Counsel placed reliance on thedecision 2004( 2) LLJ 423 , Francis Vincent Neelankovil , Trichur and Industrial Tribunal , Madras and another, wherein it is observed as follows :

"The High Court observed the appellent's misconduct could not be treated as a case of mere temporary misappropriation. He firstly made a false document and on that basis made a false representation to the bank's customer, chelated him, and in the process made unlawful gain of Rs . 500 to himself and on the top of it had falsely claimed that he had returned the money even before the enquiry begán .

The Tribunal's award was a unique piece of thinking the High Court said , and was rightly interfered with by the single judge .

In conclusion the High Court said here the appellant was working as a bank clerk holding a position of 'trust ' he not only abused that position but went on to drive nails to his coffin by making one false representation after another. " 48. The Counsel for the Respondent/Bank relied on the decision 2000 ( 2 ) LLJ p . 1395 Janatha Bazaar South Central Co - operative Wholesale Stores Ltd. , & Others . And Secretary Sahakari Noukarara Sangha & Others , wherein it is held as follows :

"The Supreme Court observed that the finding of the Labour Court, confirmed by the Single Judge and the Division Bench , was that the charges against the four workmen ( employees) for the breach of trust and misappropriation of funds entrustedto them had been established . After giving the said finding , the Labour Court ( as well as the High Court ) materially erred in (a ) setting aside the order of the ( appellant ) Management which removed them from service and in (b) directing their reinstatement with 25 % back wages . Once act of misappropriation was proved, there was no question of showing uncalled for sympathy to the workmen or of considering their past(unblemished record ) . "

49. The Learned Counsel for the Respondent/Bank cited the decision (2003 ) 3 Supreme Court Cases 605, Regional Manager , U.P. SRTC , Etawah , and Others , Vs. Hoti Lal and Another , wherein it is observed as follows:

"Service Law-Misconduct-Penalty/ Punishment-- Scope ofjudicial review of - Test of proportionality-Held , is very limited and restricted to exceptional cases -- The Court must give reasons for holding the punishment to be

[PART II-SEC. 3 ( ii) ]

was not commensurate with charges-A mere statement that the punishment disproportionate , would not suffice-Not only the amount involved , but the mental set - up , the type of duty and similar relevant circumstances have to be taken into consideration to decide , the proportionality of the punishment If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, held , the matter should be dealt with iron hands and not leniently-Hence , termination of the service of a bus conductor for carrying ticketless passengers in the SRTC bus , upheld- That such misconduct had caused to the State only a loss of Rs . 16 , inconsequential . "

50. The Respondent/Bank's Counsel drew the attention of this Tribunal to the decision ( 2006 ) I Supreme CourtCases 63 Karnataka Bank Ltd. , Vs. A. L. Mohan Rao , wherein it is held as follows :

A "Labour Law-Penalty/ Punishment- Proportionality- Scope of judicial review---- Sympathy as a factor---Fictitious loan- Respondent charged with gross misconduct of colluding with a Branch Manager in grant of-In enquiry, respondent admitting that he did all the acts necessary for grant of said loan , knowing that he had no authority to do any of the acts ; and being dismissed on being found guilty- Labour Court / Tribunal dismissing claim of respondent-However, Single Judge of High Court allowing Writ petition and ordering reinstatement even though it found that misconduct proved on sympathetic grounds- Impermissibility-Held , a gross misconduct ofthis nature does merit dismissal - It cannot be seen what other type of misconduct would merit dismissal - It is not for courts to interfere in cases of gross misconduct of this nature with decision ofdisciplinary authority , on any mistaken notion of sympathy, so long as inquiry has been fair and proper, and miseonduct proved-In such matters it is for disciplinary authority to decide what is the fit punishment. "

51. It is to be pointed out that to judge the validity of any Administrative Order or Statutory Discretion, or the Wednesbury Test is to be applied to find out if the decision wasillegal or suffered from procedural improprieties or was one which no sensible decision make her could, on the material before him and within the frame- work of the Law have arrived at and that the Court could consider whether the relevant matters were not taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide , besides considering whether the decision was absurd or perverse and the Court would not however, go into correctness of the decision made by 6581

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[ भाग II-खण्ड 3 (ii ) ]

the Administrator among the various options open to him nor could the Court substitute its decision to that of the administrator .

52. At this juncture , it is quite apt to cite the decision 1996 I LLJ p.1231 @ p. 1235 between B.C. Chaturvedi and Union of India & Ors , wherein it is observed as follows :

"There is no warrant for the view expressed by the High Court that in considering whether a public Officer is guilty of the misconduct charged against him , the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied , and if that rule be not applied , the High Court in a petition under Art. 226 of the Constitution is competent to declare the order of the authorities holdings a departmental enquiry invalid. The High Court is not constituted in a proceeding under Art . 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant ; it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence , which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the deliquent officer is guilty of the charge , it is not the function of the High Court in a petition nor a writ under Art . 226 to review the evidence and to arrive at anindependent finding on the evidence . The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable , person could ever have arrived at that conclusion, or on similar grounds . But the departmental authorities are , if the enquiry is otherwise properly held , the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art . 226 of the Constitution " .

"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made . Power of Judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court . 'When an enquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a Competent Officer or whether rules of natural justice are complied with . Whether the findings or conclusions are based on some evidence , the authority entrusted with thepowerto hold inquiry has jurisdiction , power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence . Neither the technical rules of Evidence Act nor of proof fact or evidence as defined therein, apply to disciplinary proceeding. Then the authority accepts that evidence and conclusion receives support there from the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge . The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence . The Court/Tribunal may interfere where the authority hold the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry where the conclusion or finding reached by the disciplinary authority is based on no evidence . If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion of the finding and mould the relief so asto make it appropriate to the facts ofeach case. "

55. As a matter of fact, it is a well settled principle that even though judicial review of administrative action should remain flexible and its dimensions is not closed , yet it must be borne in mind that the Judicial Review is directed is not against the decision , but is confined to the examination of the decision- making process , of course , irrationality and perversity re - recognised grounds of judicial review , in the considered opinion of this Tribunal .

53. Admittedly, the disciplinary authority is the sole judge of facts , where appeal is presented, the appellate authority has Co - extensive power , to reappreciate the evidence or the quantum of punishment . In a disciplinary inquiry the strict proof of legal evidence are not relevant and adequacy of evidence or reliability of evidence , cannot be permitted to be raised before the Tribunal , in the considered opinion of this Tribunal.

54. In 1964 II LLJ p . 150 @ 154 State of Andhra Pradesh and others and Sri Rama Rao (s) , it is held as follows:

56. It cannot be gain said that the opinion of a handwriting expert is not conclusive , still it cannot be brushed aside so lightly . The Tribunal can form its opinion inrespect of the disputed handwriting either on the opinion of handwriting expert or on the opinion of the person acquainted with the handwriting . For confirming an opinion, the opinion of an individual specially skilled to identify the 6582

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[PART II-SEC. 3(ii) ] handwriting may be obtained , opinion of a specially skilled individual having scientific knowledge could be accepted.

natural justice do not supplant the law but supplement it . As a matter of fact , the authority must act in good faith and not arbitrarily but reasonably as per decision AIR 1979 SC 1302 Mahabir Prasad V, State.

Ingeneral , an Expert may give evidence in Chief as to the grounds on which he has reached his opinion and it may be said that without the grounds , the opinion is valueless (Phipson , 12th Ed . SS 1207 Ed . SS 1207 & 1266) .

Atthis juncture, this Tribunal opines that no one is bound to attend an enquiry against himself and therefore, an employer cannot compel an employee to attend an enquiry and if an employee does not attend the enquiry , thenit can be held 'Exparte' .

57. When the handwriting expert given his opinion the Court must see for itself and with the assistance of expert come to his own conclusion whether the two writings are of the same persons as per decision AIR 1984 NOC 77 All . Ramprasad Vs. Shyamlal.

62. It cannot be again said that no rigid procedure is prescribed to conduct an enquiry . Yet some minimum standards of procedure which are recorded as rules of Natural Justice has to be followed as per decision 1968 II LLJ p.94 between Palani ( K) V. S. F. Vellore Electricity System.

58. Generally , the characteristics of handwriting of an individual should have been taken into consideration and such characterstics cannot be determined with the aid of admitted signatures.

59. It is significant to point out that Lord Haltom in ChiefConstable of the North Wales Police Vs. Evan , 1932(3) ALL. ER has observe as follows :

63. In order to come to a conclusion in regardto whom the legal burden rests in addition to substantive law, the pleading of the parties along with the documents thatare produced and the admission if any pertaining to such documents will have to be takeri into account as per decision AIR1976 Del. 70/M/s Surajbhan Kailash Chand V. Hari Shankar Vashist .

"The purpose of Judicial Review is to ensure that the individual receives fair treatment , and not to ensure that authority , after according to fair treatment , reaches , on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the Court ."

InGovt. ofTamil Nadu and another Vs. Rajapanidian 1995 ( 1 ) LLJ p . 953 @ 954, it is held that

64. Each circumstances relied upon by the prosecution must be established by cogent, reliable and succint evidence , the circumstances must be of an incriminating character . All the proved circumstances should provide a complete chain , no link of which should be missing and they must unequivocally point to the quilt of the delinquent and exclude any hypothesis consistent with his innocence as per decision ( 1980) ISCC 530 Pahalye Morya Valvi Vs. State of Maharashtra .

"Administrative Tribunal cannot reappreciate the findings recorded before the Inquiry Authority and reachdifferent conclusions on its own evaluation of evidence . The Administrative Tribunal does not sit as Appellate Authority over the findings of Inquiry Authority. "

60. In 1972 ILLJ p . 1 @ p. 6 between Union of India and Sardar Bahadur , wherein it is observied that

65. It is well established principle that when the opposite party declines to avail himself of the opportunity to part his essential and material case in cross - examination, it must follow that he believes that the testimony given could not be disputed at all and this is the rule of Essential Justice.

66. As a matter of fact, in domestic enquiry, guilt need, not be established beyond reasonable doubt , proof or his conduct may be sufficient as per decision J.D., Jain V. StateBank of India 1932 LLR p.8(9) Sc.

67. It is relevant to point out that in the definition of 'dishonestly' the intention to cause wrongful gain or loss is anessential ingredient. Under Section 23 of I.P.C. an individual is said to gain wrongfully , when he retains wrongfully . To do any act ' dishonestly' is a grave misconduct on the part of an employee holding responsible position. The term 'Misconduct' is an act which is inconsistent with the fulfilment of express or implied conditions of service , in the considered opinion of this Tribunal .

" a disciplinary proceedings is not a Criminal trial . The standard of proof required is that of proponderance of probability and not proof beyond reasonable doubt . If the inference that Nandakumar was a person likely to have official dealings , with the respondent was on which reasonable person would draw from the proved facts of the cases, the High Court cannot sit as Court of Appeal over a decision based on it . Where there are some relevant materials which the authority has accepted the conclusions that the officer is guilty , it is not the function of the High Court , exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of evidence cannot be canvassed before the High Court" .

68.This term wrongful gain is the gain by unlawful means of property to which the person gaining is not legally entitled.

61. It is to be borne in mind that the principles of 6583

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[ भाग II-खण्ड 3 (ii ) ]

69. The 'wrongful loss ' is the loss by unlawful means of property to which the person losing is legally entitled . As a matter of fact , a misconduct affects morality under which it includes dishonesty, theft , or fraud ,disloyalty , damage to property or reputation of the Employer/ Company, in the considered opinion of this Tribunal .

70. For commiting any fraudulent act one has to be dishonest but for being dishonest, there may not be any need to become a fraud . Acts of dishonesty or fraud constitute misconduct of grave nature .

the Counter without taking over . P.W. 6 Thiru J. Damodaran has stated in his evidence before the Enquiry Officer in the domestic enquiry, the cashier Thiru K. Ibrahim , the petitioner /claimant will go for his lunch and carry on his work from where he left and the contention of the claimant that his counter is manned by him is absolutely baselass and normally at 1.30.P.M. the Counter used to be crowded with the OTA cadres and all the official incharge and clerk used too be busy in getting the vouchers posted and passed and making it ready for eventual payment by the Cashier .

71. Accordingto the Learned Counsel for the petitioner the Petitioner/ Claimant was on duty at the relevant point of time but that will not make the Petitioner / Claimant liable for the charges levelled against him and that none of the witnesses have identified the petitioner/ claimant , in the domestic enquiry.

75. In short , the case of the Petitioner /Claimant that the Cash counter will be manned by Thiru J. Damodaran during lunchbreak, in the absence of the petitioner/claimant is rebuttedby P.W.U Thiru J. Damodaran , At this juncture , itispertinent to point out that in Ex . W.74 dated 26-4 1988 Explanation submitted by the Petitioner/Claimant he has not mentioned anything about P.W. 6 Thiru J. Damodaran butonly inter alia mentioned that he perused the relative challan and found that theydid not bear his initials and that he was not aware as to how the incidents cited had happened.

72. It is represented on behalf of the petitioner , claimant that P.W. 2 Thiru R. Jayaram in the domestic enquiry has stated that he remitted the money to the person who acted a Cashier on that day and that the said person gave him the receipt . As a matter of fact , P.W. 2 Thiru R. Jayaram has stated that he will identify the person if he is shown to him . P.W. 2 Thirti R. Jayaram in the domestic enquiry has also stated that he remitted Rs.3,000 on 26-10-1987 at the OTS Extension counter for which he was given the receipt . It is to be pointed out that the sum of Rs . 3000 remitted by P.W. 2 Thiru R. Jayaram was not given credit to his account at the Kovilpatti branch and when he enquired about the same at the Kovilpatti Bank branch he came to know about the same .

73. P.W. 6 Thiru J. Damodaran , Officer of the bank, before the Enquiry Officer in the domestic enquiry has stated that the petitioner /claimant was deputed to the OTS Extension Counter to work as Cashier and he has identified the signature on the reverse of debit vouchers on account ofOTS Cash balance account of Guindy Branch to that of Thiru K. Ibrahim, Cashier . P.W. 6 Thiru J. Damodaran , Officer of the bank has stated that the letter dt. 9-5-88 was signed by Thiru Shubkaran and that he remitted Rs . 1,800/- and in the Counterfoil the date is mentioned as 4-11-87 and that the letter dt . 11-3-88 was signed by Thiru C. J. Paul and in the Counterfoildt . 5-2-88 the applicant's name is Thiru C. J. Paul and that the Counterfoil contains the cash receipts stamped of OTS Extension Counter , signature of the Cashier Thiru K. Ibrahim and that the individuals Thiru Shubkaran and C.J. Paul wrote letters to the bank since the money remitted by them were not properly accounted for.

76. On behalf of the petitioner , it is contended that the Respondent/bank should have compared the signatures ofThiru J. Damodaran and others and the non-comparison of the signatures of Thiru Damodaran and others has resulted in denial of justice to the petitioner . As a matter of fact , it is not the case of the Petitioner /claimant that Thiru J. Damodaran , P.W. 6 has misappropriated the amounts in question or not accounted for the said sums . Firm a perusal of the Ex . W. 76 Enquiry Proceedings relatingto the Petitioner /claimant , in the enquiry held on 22-8-1988 it transpires that the petitioner/ claimant has given a reply before the Enquiry Officer Thiru W. S. Jayapaul that he is going to represent his case by a representative from State Bank of India Staff Union and as the time was insufficient to arrange for his representation he could not do so . In the Second sitting on 29-8-1988 , the Petitioner /Claimant has informed the enquiry officer Thiru W. S. Jayapaul that so far he was not favoured with the copies ofdocuments or the list ofwitnesses from the prosecution side and therefore once again made a request of furnish the copies so as to unable him to arrange and prepare his defence and the Enquiry Officer has advised the Presenting Officer Tr. S. Sethumadhavan to provide the copies of the documents to the petitioner/claimant and that the presenting officer was also to open the case simultaneously. The Petitioner/ Claimant has prayed for adjourning the enquiry on the ground that he received the documents now only and at the request of the petitioner , the enquiry was adjourned . In the Third Sitting on 12-9-1988 , the Petitioner/ Claimant stated before the Enquiry Officer that union defence representative was not available at present to defend his case and the Claimant /Petitioner prayed for permissionto arrange a lawyer instead of union representative and for that the Enquiry Officer informed the petitioner that in the 74. It is the case of the Petitioner /claimant that he used to take lunch between 1.30 P.M. and 2.00 P.M. and during that time Thiru J. Damodaran (Official ) used to take care of his counter which will be opened and that the Claimant will hand over the keys of his counter to Thiru J. Domodranbefore going for lunch every time, and that after lunch the Claiment/Petitioner used to carry on his work at

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[PART II-SEC. 3( ii)] domestic enquiry permission could not be granted for engaging a lawyer as Defence representative and thereafter the petitioner informed the Enquiry Officer that he will carry on with the case . P.W.1 Thiru M. Kasi , Scientific Asst. Gr . I on 19-9-1988. Fourth sitting was not cross- examined by the Claimant/ Petitioner Thiru K. Ibrahim because of his inability and that the enquiry was adjourned to 26-9-1988 . Even on 26-9-1988 , the petitioner prayed for a permission to engage a lawyer to complete the enquiry and theEnquiry Officer informed the petitioner that permission to engage a lawyer was refused and the petitioner was advised several times in this regard and adjourn the enquiry on 3-10-1988 . On the Sixth Sitting on 3-10-1988 the petitioner/claimant did not present himself for enquiry and enquiry was adjourned to 17-10-1988 . On 17-10-1988 for the 7th sitting, the petitionerdid not turn up and the Presenting Officer Thiru Sethumadhavan was advised to proceed further in this case by the Enquiry Officer and that Thiru R. Jayaram was examined on that date.

busy in getting vouchers posted and passed and making it ready for eventual payment by the Cashier . In the 12th sitting on 20-3-1989 Domestic enquiry Thiru K. Ibrahim, the petitioner did not turn up and P. W. 7 Thiru C.J. Paul was examined . P.W. 7 Thiru C.J. Paul has stated before the Enquiry Officer that he remitted Rs . 400/-on 5-2-88 by Mail transfer for credit of his mother's Account No. 38/ 8677 at Tiruchur and his mother's name is Tmt . Thandamma and he remitted the said amount in OTA Extension Counter on 5-2-88 and receipts for Rs . 400/- was issued to him by the bank and since he get a letter from the mother's stating that the money did not reach at Tiruchur he gave a letter to the bank and after 2 days he got the refund of Rs . 200/- at Officers Training Academy. Inthe 13th sitting on 22-6-89 , Thiru K. Ibrahim petitioner waspresent and informed the Enquiry Officer that he has no proposal to produce any witnesses on his behalf nor he would like to be examined himself as a witness and the Enquiry Officer proposed to conclude the enquiry after giving another final chance to the Petitioner/Claimant Thiru K. Ibrahim to defend himself and decide to conduct the next sitting on 26-5-89 at Guindy branch . In the 14th sitting on 26-6-89 , the petitioner /claimant Thiru K. Ibrahim was present . The Petitioner/ claimant informed the Enquiry Officer that since he was unable to explain anddefend himself, once again requested permission to fix a lawyer's defence and the Enquiry Officer informed the petitioner Thiru K. Ibrahim that he was already advised in the domestic enquiry permission could not be granted for engaging a lawyer as his defence representative and thereupon the petitioner/ claimant informed the Enquiry Officer that if it was so he was helpless and he has nothing to say etc. A perusal of Ex.W. 76 Enquiry proceedings normally show that the Petitioner /Claimant was given due and adequate opportunity in the domestic enquiry, in the considered opinion of this Tribunal . Except Thiru Shubkaran all other constituents were examined as witnesses in the domestic enquiry and the Respondent/ Bank has paid back the money to the constituents. In short , the witnesses P. W. 1 to P.W. 7 examined in the domestic Enquiry before , the Enquiry Officer were not Cross-examined by the Petitioner/claimant . Moreover , the Hon'ble High Court in its Orderdt. 10-4-2007 in W.A. No. 1508/04 has observed interalia that the Petitioner /claimant having participated on serveral sittings , he abandones the enquiry after certain stage and copies of documents were also either supplied or allowed to be perused by the workman and already adequate opportunity was given to him. Therefore, it is not correct to state that documents were marked hurriedly in the domestic enquiry , in the considered opinion of this Tribunal .

77. P.W. 4 Thiru U. Toppo was examined on 7-11-88, in the Nineth sitting of the domestic enquiry. For the nineth sitting on 7-11-88 , the Petitioner/claimant Thiru K. Ibrahim did not turn up . P.W. 4 Thiru U. Toppo has stated before the Enquiry Officer that his staff has written the letter and he has signed the same and that he remitted Rs . 700/- on 11-11-87 in OTA extention Counter and Rs . 700/- remitted was for mail transfer to family favouring Tmt. Philomena, S.B. A/c. No. 48/72 State Bank of India, Jhangirabad, Bhopal and he got the Counterfoil from the Cashier duly signed and stamped and he have the amount to the Cashier in the Counter and obtained the receipt for Rs . 700/- and when his family asked the Respondent/ Bank at Jhangirabad, about the remittance of Rs . 700/ - made by him, they replied that no remittance was received and then he write a letter and asked his friend to give it to the bank because at that time he was in Gwalior and that bank required him to produce the counterfoil which he did and the bank gave him a cheque for Rs . 700/- and he received amount through OTA on 22-4-88 . For the 10th sitting on 14-11-88 in the domestic enquiry the Petitioner/ Claimant Thiru K. Ibrahim did not turn up . Thiru S. Chandrasekaran, Cash Officer was examined as P. W. 5 on 14-11-1988. In the 11th sitting, on 6-2-89 when P.W. 6 Thiru J. Damodaran , Officer of the bank was examined , the claimant/petitioner Thiru K. Ibrahim attended the enquiry. When the petitionery Thiru. K. Ibrahim. was asked bythe Enquiry Officer whether he wished to cross - examine P.W. 6 Thiru J. Damodaran he replied ' No. ' Sir and said that one key was always available with the Postmaster OTS during the tenure of PW 6 J. Damodaran and the stamps used in OTS counter was kept in the OTS counter itself and Thiru J. Damodaran used to take care of Cash counter , during his lunch breaks and this was denied as baseless by P. 6 Thiru J. Damodaran stating that normally at 1.30 P.M. the counter used to be crowded with OTA cadres and all the officials incharge and clerk used to be

78. Ex . W. 77 is the findings of the Enquiry Officer, In Ex. W. 77 Findings of the Enquiry Officer , the Enquiry Officer for charge No. 1 has observed that the petitioner/ Claimant was on duty on 26-10-87 as evidenced by receipts for payments scroll dt . 26-10-87 and that the counterfoil Ex.P. 2 bears the cash received stamp duly signed by the 6585

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on 4-11-87 as evidenced by the Receipts/ payments Scroll dtd. 4-11-1987 (P. Ex . 54) and the cash counterfoil P. Ex . 5 bears the cash received stamp and is signed by the delinquent employee and the signature on the counterfoil P. Ex. 5 compares well with those in the leave letters of the employee submitted to the Branch Manager , Guindy Branch, (P. Ex . 21 to P. Ex. 26) and the signatures have been identified by Thiru J. Damodaran P.W. 6 and confirmed by the Scientific Asstt . Office of the Director , Tamilnadu Forensic Science Laboratory , Madras - 4 (P. Ex . 1 ) and the amount of Rs . 1,800 so received as shown in the counterfoil P. Ex . 5 has not been accounted for in the receipts scroll dt . 4-11-87 (P. Ex. 54) and the petitioner Thiru K. Ibrahim was found guilty of the charge No. 5 .

delinquent employee and the signature on the counterfoil Ex. P. 2 compares well with those in the leave letters of the employee submitted to the Branch Manager , Guindy Branch (Ex . P. 21 - Ex . P. 26) and this was confirmed by the Scientific Asstt. of the Office of the Director , Tamil Nadu Forensic Science Laboratory and the amount of Rs . 3,000 so received as per counterfoil was not accounted for in the receipts seroll dtd . 26-10-87 and from the facts and evidences adduced and based on the above observations , the petitioner was found guilty of the Charge No. 1. In respect of Charge No. 2, the Enquiry Officer has observed inter alia that the Petitioner Thiru K. Ibrahim was on duty on 11-11-87 as evidenced by Receipts /Challan Scroll dtd . 11-11-87 and the cash Counter foils Ex . P. 6 bears the cash received Stamp and it is signed by the delinquent employee and the signature on the Counterfoil Ex . P. 6 compares well with those in the leave letters of the employee submitted by the Manager , Guindy branch Ex . P. 21 - Ex . P. 26 is confirmed by the Scientific Assistant Office of the Director of Tamil Nadu Forensic Science Laboratory Deptt . and the amount of Rs . 700 so received as per Counterfoil has not been accounted for in the receipts Scroll dt . 11-11-87 and from the facts and evidences adduced and based on observations , the petitioner /claimant was found guilty of the Charge No. 2 . In respect of Charge No. 3 the Enquiry Officer has observed that the Petitioner Thiru K. Ibrahim was on duty on 3-2-1988 as evidenced by Receipts /Payment Scroll dt. 3-2-88 and the cash counterfoil P. Ex . 3 bears the cash received stamp and it is signed by the delinquent employee and the signature and the counterfoil P.Ex. 3 compares well with those in the leave letters of the employee submitted to the Branch Manager , Guindy Branch , P.Ex. 21 to P. Ex . 26 and this has been confirmedby the Scientific Assistant office of the Director , Tamilnadu Forensic Science Laboratory , Chennai -4 (P. Ex . 1) and a sum of Rs . 500 so received as per the counterfoil has not been accounted for in the receipts scroll dtd . 3-2-88 and came to the conclusion that the petitioner Thiru K. Ibrahim was found guilty of ChargeNo. 3.

80. According to the learned Counsel for the Petitioner/Claimant that the enquiry officer in his findings Ex. W. 77 has not taken into account the relevant points and he had not discussed the evidence tendered by witnesses in the domestic enquiry and therefore his findings are perverse . In Ex . W. 77 findings of the Enquiry Officer, the Enquiry Officer has analysed the charge and has given his observations and came to the conclusion on the basis of facts and evidences adduced and found the Petitioner/Claimant guilty of the charges . In Ex. W. 77 findings of the Enquiry Officer , the Enquiry Officer has not discussed about the evidences tendered by the witnesses . Inthe domestic enquiry. The Enquiry Officer in the enquiry findings Ex. W. 77 has mentioned that the defence arguments are ' NIL ' . Merely because , the Enquiry Officer has not mentioned about the evidence tendered witnesses in the domestic enquiry, it cannot be said that the domestic enquiry findings are vitiated and perverse , in the considered opinion of this Tribunal . Admittedly, the Enquiry Officer is not like a trained Judicial Officer towrite a reasonal findings , elaborate Judgement . The Enquiry Officer in his findings , after analysing the charges has come to the conclusion that there are relevant evidence to prove the charges levelled against the Petitioner /Claimant . A perusal of the Cashier's Receipt Scroll copies indicate that the various amounts received as per the counterfoils were not accounts for in the said scroll on the relevant dates and therefore this piece of evidence is crucial to prove the charges levelled against the Claimant/Petitioner coupled with other cumulative facts and attended circumstances of the case . In the instant case , the enquiry conducted against the Petitioner /Claimant is fair and proper, in the considered opinion of this Tribunal . As a matter of fact, it is significant to point out in regard to Charge No. 5 that the petitioner/ claimant has intentionally omitted to put the transaction of Rs . 1,800 in the Cash scroll which received on 4-11-1987 and failed to acount for the same , the Petitioner /Claimant has not submitted his explanation at all and the non- submission of the explanation in regard to charge No. 5, is a circumstance which clearly go against the petitioner/claimant .

81. The fact that the Petitioner /Claimant acted as Cashier on 26-10-87, 11-11-87, 3-2-88 , 5-3-88 and 4-11-87 is 79. In regardto Charge No. 4, the Enquiry Officer has observed that the Petitioner Thiru K. Ibrahim was on duty on 5-2-1988 as evidenced by Receipts /payments scroll dtd . 5-2-88 and the cash counterfoil P. Ex . 4 bears the cash received stamp and it is signed by the delinquent employee and the signature on the counterfoil (P. Ex . 4) compares well with those in the leave letters of the employee submitted to the Branch Manager, Guindy Branch ( P. Ex. 21 to P. Ex . 26) and this has been confirmed by the Scientific Asstt. Office of the Director , Tamil Nadu Forensic Science Laboratory , Madras - 4 ( P. Ex . 1 ) and the amount of Rs . 400 so received as per counter foil has not been accounted for in the receipts scroll dtd. 5-2-1988 and Thiru K. Ibrahim, the petitioner was found guilty of the Charge No. 4. In respect of Charge No. 5 the Enquiry Officer has observed that the petitioner Thiru K. Ibrahim was on duty 6586

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well with those in the leave letters of the Petitioner/ Claimant cannot be found fault with in the considered opinion of this Tribunal . Moreover , in Ex . W1 Forensic Science Laboratory report dtd . 1-6-88, it is clearly mentioned that the persons who wrote the Red enclosed initials , writings and signatures stamped and marked S. 1 to S. 80 also wrote the red enclosed writings and initials similarly stamped and marked Q. 1 to Q. 6 and in the reasoning sheet annexed to Ex. W. 1 report it is specifically mentioned that both the standard and questioned writing, initials and signatures were freely and speedly written and agree cumulatively in the handwriting characteristics on a interse comparison etc. When P.W. 1 Thiru M. Kasi , Scientific Assistant Gr . I was not cross examined by the Petitioner / Claimant in the domestic enquiry , then Ex. W. 1 report cannot be disputed and Ex. W. 1 report cannot be brushed aside lightly.

not disputed . The Claimant's stand in the explanation Ex . W. 74 dtd . 16-4-88 is only to the effect that he perused the relevant challans and found that they did not bear his initials and he was not aware as to how the incidents cited had happened . In the explanationdtd. 16-4-88 Ex. W. 74, the petitioner/claimant has not stated that he has not received the cash remittances in question . In Ex . W. 74 Explanation dtd. 16-4-88, of the Petitioner /Claimant , there is no whisper as to how he failed to make relevant entries for the said remittances in the receipt scroll maintained by him as Cashier . After all , Standard of proof required in a Disciplinary proceeding is that of preponderance probability and not proof beyond reasonable doubt , in the considered opinion of this Tribunal . At any rate, the findings of the Enquiry Officer Ex . W. 77 are not arbitrary and they are not perverse also , in the considered opinion ofthis Tribunal . In the case on hand , their exists reasonable basis for the disciplinary authority to procced against the Petitioner /Claimant and after due enquiry , the Enquiry Officer came to the conclusion that the Petitioner/ Claimant was found guilty of the Charges Nos . 1to 5 , Morcover , from the perusal of the Findings of the Enquiry Officer Ex. W.77 it transpires that the Enquiry Officer has summoned up the matter and also mentioned the contention of the Petitioner /Claimant that frauds in question could have been perpetrated hy other persons in the Office /building viz . Thiru C.J. Damodaran , Officer , State Bank of India or the Post master which was reiterated in his written defence brief and this was held to be not corroborated by any witness /cvidence on his behalf etc. In short , the Enquiry Officer in his findings Ex. W. 77 has come to the conclusion that there is a clear documentary evidence/ records establishing the truth of the facts to prove the charges levelled against the Petitioner /Claimant and found him guilty of all the five charges . As far as the present case is concerned, the Enquiry Officer has taken into consideration all the proved circumstances which provided a complete chain, no link of which is missing and they clearly point outto the guilt of the petitioner /claimant in the considered opinion of this Tribunal .

83. The learned counsel for the Petitioner /claimant contends that no witness examined in the domestic enquiry had identified the Petitioner / Claimant as Cashier on the relevant dates when the remittances in question were made. Admittedly , the Petitioner/Claimant has not cross - examined P.W. 1. Thiru M. Kasi , Scientific Asstt . Gr. 1 , in thedomestic enquiry . On 17-10-88 for the 7th sitting the petitioner/ claimant has turn up and the enquiry proceeded further and P.W. 2 Thiru R. Jayaram was examined . For the 9th Sitting on 7-11-88 the petitioner/ claimant has not turned up and P. W. 4 Thiru U. Toppo was examined . For the 10th sitting on14-11-88 the Petitioner/ Claimant has not turned up and P.W. 5 Thiru S. Chandrasekaran Cash Officer was examined. In the 12th sitting on 20-3-89 in the domestic enquiry the petitioner has not turned up and Thiru C.J. Paul was examined as P.W. 7. In the 8th sitting on 21-10-88 in the domestic enquiry the Petitioner / Claimant has not turned up and Thiru B. Mohanan Pillai was examined as P.W. 3. From the above, it is candidly clear that when the constituents of the bank were examined as witnesses on the relevant dates , the petitioner/claimant has chosen to absent himself by not appearing in the domestic enquiry . Therefore , the contention of the Petitioner's side , the constituents/witnesses have not identified the petitioner/ claimant is not accepted by this Tribunal .

84. When the Petitioner/ Claimant has acted as Cashier on the relevant dates when the constituents made the remittances , then it is for the Petitioner/Claimant to prove the fact which is particularly within his knowledge and equity fair play and justice also dernand that he must prove the same and he cannot plead ignorance as to how the incidents cited by the Respondent bank had happened especially when the burden of proof in the given case has shifted on the delinquent , based upon the explanation given by him and the nature of charges levelled .

82. According to the Learned Counsel for the Petitioner / Claimant the observations of the Enquiry Officer in his Enquiry findings Ex . W. 77 to the effect that the signatures on the Counter foils compares well with those in the leave letters are not correct , because the counterfoils contains only the initials and not the signatures . The five counterfoils are marked as Exs . W. 2 to W. 6 and they have been marked as Q. 1 to Q. 6 in Ex. W. 1 report of the Forensic Science Laboratory dtd . 1-6-88 Exs . W. 7 to W. 20 are the Pay in slip of the State Bank of India , Guindy OTS Extension Counter Branch wherein the admitted signatures of the Petitioner/ Claimant are seen . In Exs . W. 21 to W. 47, the full signatures of the Petitioner / Claimant are seen and these signatures are seen in Q. 1 to Q. 6 in short farm and therefore, the observations of the Enquiry Officer in Ex . W. 77 Enquiry findings that the signatures on the Counterfoils compares

85. It is significant to point out that in 2005 (2) LLJ P. 6 Varadarajan K.S. and Deputy Commissioner of Labour (A.A. under S. 41 (2) of the T.N. Shops & Establishments 6587

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[भाग II-खण्ड 3 (ii ) ]

Act 1947) , Madras and Another , it is observed that.

"Furthermore , even if the statute specifies a time for publication of the same by itself could not have been held to be mandatory . Such a provision would be directory in nature it is a well -settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefore , the same would be directory and not mandatory " .

"Itmust be understood that the appelate authority is the Deputy Labour Commissioner and he is not excepted to write in elaborate and as good a judgement as a regular Civil Court woulddo . He is only an executive authority and we cannot except the executive authority to write as good a judgement as atrained judicial officer . Moreover, this Court under Article 226 of the Constitution of India cannot reapprecite the evidence nor can it go into the question of evidence in support of the charges this Court cannot interfere . "

89. The Learned Counsel for the Respondent/Bank contends that the provision in a statute which is procedural nature although employs the word ' shall ' may not be held to be mandatory if no prejudice is caused to a party and in the instant case the word ' shall ' in the Bipartite Settlement isonly aprocedural provision, which is not of a mandatory character and the ultimate test should be viz . the test of fair hearing as it usually called and in the instant , case , no prejudice has been caused to the appellant/claimant.

90. At this juncture , it is relevant to point out that generally although the word ' shall ' be considered to be imperative in nature but it has to be interpreted as directory if the situation or context otherwise demands , in the considered opinion of this Tribunal . It is significant to point out that para 19 : 14 of the Bipartite Settlement , nowhere provides for the consequences if the appeal is notdisposed ofwithin a period of 2 months from the date of its receipt .

86. The Learned Counsel for the Petitioner urges that the Appellate Authority has not disposed of the appeal field by the Petitioner within a period of 60 days as required and without applying his mind the Appellate authority has confirmed the findings of the Enquiry Officer and that the appellate authority has not evaluated evidence and that the Order of the appellate authority is a non - speaking one . Ex . W. 81 is the Appealdt . 2-5-1990 filed by the Petitioner/claimant against the Order of dismissal . Ex . W. 79 is the Dismissal order dt . 14-3-90 passed by the Disciplinary authority , Deputy General Manager of the bank . Ex . W. 83dt . 2-6-1990 is the order passed by the Appellate Authority, General Manager (Operations of the Respondent/bank) .

91. A procedural rule oridinarily should be construed as mandatory as per decision AIR 2003 Kant . 417, 422 A. V. Purushittam Vs. N.K. Nagraj .

92. Whenever a statute declares that a thing shall be done, the natural and proper meaning is that a peremptory mandate is enjoined . But where the thing has reference to (i) the time or formality of completing any public act , not being a step in a litigation or accusation or ( ii ) the time or formality of creating an executed contract whereof the benefit has been or but for their own act might be , received by individuals or Private Companies or Private Corporations , the enactment will generally regarded as merely directory unless there be words making the thing done void if not done in accordance with the prescribed requirements (Stroud 6th Edi ) ; 2000.

87. According to the Learned Counsel for the petitioner , as per Bipartite Settlement para. 19:14 in cases where hearings are not required an appeal shall be disposed ofwithin 2 months from the date of receipt thereof and in cases where hearings are required to be given and are requested for , such hearings shall commence within one month from the date of receipt of appeal and shall be disposed of within one month from the date of conclusion of such hearings , and the period within which an appeal can be preferred shall be 45 days from the date on which the original order has been communicated in writing the employce concerned and as far as the present case is concerned, the appeal has been preferred by the Claimant/ Petitioner Ex. W. 80 dated 2-5-90 was disposed of by the Appellate Authority as per Ex . W. 83 dt . 26-9-90 after a period of 4months and 24 days and therfore the hank has violated the Bipartite Settlement para 19 : 14 in and by which they should have disposed of the appeal within a period of 2 months from the date of receipt of appeal .

93. The word shall is in the context only directory and not mandatory and the non- compliance with the directions would not render a promotion or a transfer otherwise regularly and validly made any way ineffective or inoperative as per decision AIR 1958 Kerala 85 , 87, С.Р. Mary Vs. State of Travancore- Cochin .

94. As far as the present case is concerned , even though the Bipartite Settlement para 19 : 14 speaks of.

"An appeal shall be disposed of within 2 months from the date of receipt thercof .

88. The Learned Counsel for the Respondent/Bank submits that the words that an appeal shall be disposed of within 2 months from the date of reccipt thereof as mentioned in para 19: 14 of the Bipartite settlement is only directory in nature and the same is not mandatory and in support of his contentions he relied on the Judgement in Civil Appeal No. 2534/2007 Management , Dandiyan Roadways Cor . Ltd. , Vs. N. Balakrishnan , wherein it is observed that :

the word ' shall ' is to be construed only as directory and not mandatory , in the considered opinion of this Tribunal . Further more , since the appeal in the instant case has been disposed of after a period of 4 months and 24 6588

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days it will not lead to the conclusion that the order of Appellate Authority Ex . W. 83dt . 26-9-90 is a nullity one. Inshort, by disposing of the appeal on 26-9-90 , no prejudice has been caused to the petitioner/claimant , in the considered opinion of this Tribunal .

95. The Learned Counsel for the Respondent/bank submits that this Tribunal is not expectedto sit as a Appellate Court on the enquiry report and in support of his contentians , he relied on the decision 2007 (2) LLJ 295 @ 299 Ananda Kathirone and Another And Presiding Officer, Principal Labour Court , Chennai and another , wherein it is held that :

"The common thread running through the decision of the Apex Court is that the Courts should not interfere with the administrative matters unless it is illogical or suffers from procedural impropriety. The scope ofjudicial review either by the Labour Court or by the High Court or by the Supreme Court is clarified by the Supreme Court . The scope ofjudicial review is limited is defined and decision making process and not the decision . There is no scope for interference in the order of the disciplinary authority basing in the report of the enquiry officer unless the order of the disciplinary authority is based on no evidence , error of law and not error of fact and such error is appeared on the face of the record . It is not for the courtto construre itself as an appellate Court over the orders of the disciplinary authority to resolve the action qualitatively different from ordinary civil dispute and re - adjudicate upon the question of fact decided by the authorities ."

96. The Learned Counsel for the Respondent /Bank cited the decision 1994 Suppl . (2) SCC 468 @ 470, 471 , State Bank of India Bhopal Vs. S.S. Koshal, wherein it is observed asfollows : -

"Now coming to the third ground on which the High Court has allowed the Writ petition , the relevant rule [Rule 51 (2)] reads as follows:

"An appeal shall be preferred within 45 days from date of receipt of the order appealed against . The appeal shall be addressed to the appellate authority and submitted to the authority whose order is appealed against . The employce may, if he so desires , submit an advance copy to the appellate authority . The authority whose order is appealed against shall forward the appeal together with its comments and records of the appellate authority shall consider whether the findings are justified and/or whether the penalty is excessive or inadequate . Authority may pass an order confirming, enhancing , reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty orto any

[ PART 11-SEC. 3 ( ii )] other authority with such directions as it deems fitin the circumstances of the case . " TheHigh Court has taken the view that the rule required the appellate authority to pass a speaking order even if it is an order of affirmance . For the purpose of this case , we shall assume the said view to be the correct one . Even so we are not satisfied that the appellate order is not a speaking order. We have already extracted the appellate order in full herein before ,which shows that it considered at length the facts of the case including the fact that the appellate authority (Sic disciplinary authority) had differed from the findings of the Enquiry Officer in respect of the two charges . The appellate authority then says that it considered the relevant grounds of appeal and after considering the facts of the case came to the conclusion that there was no substance in the appeal . In view of the fact that it was an order of affirmance , we are of the opinion that it was not obligatory on the part of the appellate authority to say more than this as the order as it is , shows application of mind. The order cannot be characterised as a non - speaking order . " 97. A perusal of Ex . W. 83 order of Appellate Authority Dt. 26-9-90 , shows the application of mind by the Appellate authority and the appellate authority has observed that even though reasonable opportunity was given to the petitioner , he failed to enlist the assistance of an member of a registered Union of Bank Employees and his inability to cross - examine the prosecution witnesses was , therefore , of his own creation etc. and that the other points raised by him in the appeal are irrelevant to the issue . As a matter of fact , the appellate authority has come to the conclusion that there is no justifiable ground to interfere with the decision of the Disciplinary Authority in dismissing the petitioner from the bank service and hence rejected the appeal dt . 2-5-1990 . As a matter of fact, the Ex. W 83 order of the Appellate authority dt . 26-9-90 is a speaking order and it cannot be described as a non - speaking onebyany stretch of imagination in the considered opinion of this Tribunal . Moreover , in an order of affirmance , it is not obligatory on the part of the Appellate authority to say more than what is stated in the said order .

98. From the facts and attendant circumstances of the prescent case, this Tribunal opines that the Petitioner/ Claimant has driver the nails to his downfall by not cross- examining the presecution witnesses when the burden of proof has shifted on him based upon the explanation furnished by him and the charges levelled against him .

99. This Tribunal opines that as per Bipartite Settlement para 19:14 it is proper for the Respondent/bank to pass orders in appeal matters within the stipulated period, sothat the spirit of the said settlement does not get defected.

6589 [ भाग II खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

100. In 2007, II LLJ p . 856 Shiras Golden Restaurant And Commercial Shop & Fact . Est . Union and others , it is observed as follows :-

itis inter alia held that the Industrial Tribunal cannot interfere with quantum of punishment of proved misconduct is grave in nature warranting dismissal from service . Thus , having regard to the facts and circumstances of the present case and in the light of the discussions made above and on examination and consideration of available materials on record , this trubunal comes to the conclusion that the Respondent/bank is justified in dismissing to petitioner Thiru K. Ibrahim with effect from 14-3-1990 and the point is answered accordingly.

" Practice and Procedure-Assistance of Lawyer sought by workman to held them in enquiry proceedings- If employer be not represented by legally tained person , workman would not have right to take assistance of the a lawyer-Further , charges in this case not complicated involvingvoluminous records-Hold in such circumstances assistance of lawyer not required-No violation of natural justice due to rejection of plea of workman. "

In the result , an award is passed holding that the Respondent/Bank is justified in dismissing the Petitioner Thiru K. Ibrahim with effect from 14-3-1990 . There shall be no order as to costs .

Dictated to shorthand writer and transcribed by her and corrected by me and pronounced in open Tribunal on this 19th day of July , 2007.

N. VENUGOPAL, Presiding Officer

I.D. No. 77/92 :

LIST OF WITNESSES AND EXHIBITS :

WITNESSES EXAMINED ON THE SIDE OF WORKMAN AND MANAGEMENT

DOCUMENTS MARKED ON THE SIDE OF WORK- MAN :

101. The term Misconduct is of two words . ' Mis ' means badly and ' conduct ' means behaviour . As a matter offact , 'Misconduct ' is a relative term . In stroud's Judicial Dictionary , the term ' Misconduct ' means arising from ill- motive . The term ' misconduct ' literally means Conduct amiss , to mismanage , wrong or improper conduct, bad behaviour , unlawful behaviour or conduct . The synonyms are Misbehaviour , misdemeanour ; mismanagement ; misdeed , deliquency ; offence . It implies a wrong intention . Misconduct is doing something or omitting to do something which is wrong to do or omit . Whereas the person who is guilty of the act or omission knows that the act which he is doing , or that which he is omitting to do , is a wrong thing to do or omit it, therefore , follows that the misconduct may or may not be wilful [ Lewis v. G.W. Railway Co. (1877) 3 QBD 195] .

Ex.W.1 1-6-88 Report of the Forensic Laboratory

Ex.W.2 26-10-87 Counterfoil of Challan

Ex.W.3 3-2-88 -do-

Ex.W.4 5-2-88 -do-

Ex.W.5 4-11-87 -do-

102. I is to be pointed out that Misconduct arises if a person does what he should not have done and does not do what he Should have done or any unbusiness like conduct, including negligence or want of necessary care . (P.N. Railway Co. V. Mooligi Sinai Co. AIR 1930 Calcutta 815).

Ex.W.6 11-11-87 -do-

Ex.W.7 5-11-87 Pay in slip

Ex.W.8 6-11-87 -do-

Ex.W.9 3-2-88 -do-

103. At this juncture , it is pertinent to point out that acts of dishonesty/ or Graud certainly constitute misconduct of serious nature which not only attract dismissal but much else as their legal cosequences as per decision 1963 I LLJ P. 250Workmen of Dema Dim Tea Estate v . Dema Dim Tea Estate.

Ex.W. 10 8-2-88 -do-

Ex.W. 11 3-2-88 -do-

Ex.W. 12 3-2-88 -do-

Ex.W.13 26-10-87 -do-

Ex.W.14 26-10-87 -do-

104. Moreover , the quantum of amount as misappropriated by an employee is irrelevant , when there is fiduciary relationship between the employer and Employee . Any Dishonest conduct on the part of an employee in relation to the business of his employer is a serious misconduct , in the considered opinion of this tribunal .

Ex.W. 15 26-10-87 -do-

Ex.W. 16 5-1-88 -do-

Ex.W. 17 5-2-88 -do-

Ex.W. 18 5-2-88 -do-

105. It cannot be gain said that the petitioner/ claimant was empoyed in the Respondent/bank as Cashier , where the confidence of the constituents is a vital one for the success of the business of the Respondent/ bank, in the considered opinion of the Tribunal .

Ex.W.19 5-2-88 -do-

Ex.W.20 5-2-88 -do-

106. In 1999 II LLJ 194 Management of Catholic Syrian Bank Ltd. , and Industrial Tribunal , Madras - 104 & Another , 6590

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

Ex .W.21 7-11-87 Leave letter from Claimant to Respondent

Ex.W.22 21-1-87 Leave letter -do- (Xerox copy)

-do-

Ex.W.23 2-3-87

Ex .W24 11-3-87 Leave letter from claimant to Respondent

Ex.W.25 25-3-87

-do-

Ex.W.26 May , 87

1-8-97

Ex.W.27

Cashier's receipt scroll xerox copy Ex.W. 28 10-8-87 Cashier'sreceipt scroll xerox copy

-do-

Ex.W.29 Aug. ' 87

Ex.W.30 13-8-87

-do-

Ex.W.31 13-8-87

-do-

Ex.W.32 14-8-87

-do-

Ex.W.33 14-8-87

-do-

Ex.W.34 14-8-87 Cashier's receipt scroll xerox copy Ex. W.35 17-8-87

-do-

Ex.W.36 21-8-87 Cashier's receipt scroll

Ex.W. 37 27-8-87

-do-

[PART II-SEC. 3( ii) ] Ex.W.56 9-11-87

-do-

page 22 Ex.W.57 10-11-87

-do-

page 23

-do-

Ex .W.58 10-11-87

page 27 Ex.W.59 11-11-87

-do-

page 29 Ex.W.60 11-11-87

-do-

page 31 Ex.W.61 12-11-87

-do-

page 33 Ex.W.62 00-00-87

-do-

page 15 Ex.W.63 21-4-88 Banker's cheque favouring U. Toppo Ex.W. 64 20-5-88

-do-

Shubkaran Ex.W.65 26-10-87 Respondent debit O.T.S. Cash balance amount

Ex.W.66 9-5-88 Letter from Shubkaran to respondent Guindybranch .

Ex.W.67 4-11-87 Respondent debit O.T.S. Cash balance amount

Ex.W.68 11-11-87

-do-

Ex.W.69 3-2-88

-do-

Ex.W. 70 8-2-88

Ex.W.38 17-12-87

-do-

Ex.W. 39 17-12-87

-do-

Ex.W.40 30-10-87 Cashier's payment Scroll Book Label

-do-

Ex.W.71 14-3-88 Respondent debit Suspense account Ex.W.72 21-4-88

-do-

Ex.W.73 9-4-88

Ex .W. 41 30-10-87

-do-

Ex.W. 42 Oct.'87

-do-

Ex.W. 43 26-10-87 Cashier's payment Scroll Book Label Ex.W.44 3-2-88

-do-

Ex.W. 45 3-2-88

-do-

Ex .W. 46 1-12-87 Cashier's payment Scroll Book Label Ex.W.47 5-2-88

Charge sheet

Ex.W. 74 16-4-88 Letter from applicant to disciplinary authority.

Ex.W.75 14-5-88 Charge sheet

Ex.W. 76 22-8-88 Enquiry proceedings page . 1to 45 Ex .W.77 19-9-88 Findings of Enquiry officer Ex.W.78 8-9-88

-do-

Ex .W.48 14-3-88 Bank's cheque favouring R. Jayaraman

Letter from Applicantto Enquiry officer.

Ex .W.79 14-3-90

Ex.W. 49 14-3-88

Dismissal order .

Ex.W.80 2-5-90

Telegraphic transfer application in favour of B. Unnikrishnan , Appeal against the Order of dismissal .

Ex.W.81 10-9-90

Ex.W.50 14-3-88 Bank's cheque favouring C.J. Paul .

Ex.W.51 24-2-88 Letter from B. Mohanpillai to Respondent

Letter from applicant to Respondent questioning the non-disposal of appeal

Ex.W.82 10-9-90

Ex.W.52 11-3-88

Additional Grounds of Appeal .

Ex.W.83 26-9-90

Letter from C.J. Paul to respondent (O.T.A. Extn .) Guindy branch.

Ex.W.53 21-3-88 Letter from Subbu Toppo to Respondent Guindy branch .

Ex.W.54 6-11-87 Cashier's payment Scroll page . 19

Order ofAppellate Authority .

FOR RESPONDENT/MANAGEMENT

Ex.M. 1 21-12-87 Complaint letter from Jayaraman Ex.Μ. 2 20-5-88

Ex.W.55 9-11-87 Cashier's payment Scroll page 21

Suspence account debit voucher for Rs. 1800/- [ भाग II-खण्ड 3( ii) ]

नई दिल्ली , 13 अगस्त, 2007

का.आ. 2529.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार बैंक ऑफ बड़ोदा के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. 1 , नई दिल्ली के पंचाट ( संदर्भ संख्या 24/95 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/288/94- आई. आर. ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 13th August, 2007 S.O. 2529. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Reference No. 24/95) of the Central Government Industrial Tribunal -cum- Labour Court No. 1 , New Delhi as shown in the annexure in the industrial dispute between the employers in relation to the management of Bank of Baroda and their workman , which was received by the Central Government on 13-8-2007.

[No. L- 12012/288 /94 - IR (B - II ) ] RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI SANT SINGH BAL : PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTSRIAL TIBUNAL NO . I : NEW DELHI

I.D. NO. 24/95

In the matter of dispute between :

Shri Balak Ram Through Shri A.K. Jain ,

6591

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

AWARD

The Central Government in the Ministry of Labour vide its order No. L- 12012/288 /94- I R. (B-2) dated 8-2-1995 has referred the following industrial dispute to this Tribunal foradjudication:

"Whether the action of the management of Bank of Baroda, Bareilly in not confirming Shri Balak Ram , Permanent part -time Sweeper as permanent Peon is legal and justified ? If not, to what relief is the said workman entitled ?"

Workman

General Secretary , Utter Pradesh Bank of Baroda Employees Union ( WZ) C.O. Bank of Baroda , Vayaukti Bazar , Ghantaghar Branch , Meerut-250002.

Versus

Zonal Manager, Bank ofBaroda, R/ o Anand Ashram Road , Civil Lines ,

2. Brief facts of this case as culled from record are that the workman was appointed as a permanent part time sweeper and posted to work at Keolaria Branch of the said Bank in Bareilly district w.e.f. 24-4-82 on one third of the scale wages payable to members of subordinate staff. His services conditions were/are governed by the provisions of the Sastry Award as modified in the Desai Award and further modified in the various Bipartite Settlements entered into between the management of the Bank and their workmen from time to time through he was appointed as a part time workman his services used to be utilized working in temporary vacancies of peon /messenger from time to time in leave etc. There arose a permanent vacancy of full time peon at Keolaria Branch in September , 93 and bank management selected him and promoted him to work in the aforesaid permanent vacancy of peon w.e.f. 15-9-93 but did not issue any appointment letter /order in violation of the provisions of the Bipartite Settlement , Award and was told that he would be given appointment letter/order lateron. Despite his appointment to the post of Peon he was also requiredto continue to perform the duties of Sweeper also which amounted to unfair labour practice . He worked satisfactorily in the post of peon for six months and he became entitled to be confirmed in the said permanent vacancy of peon. He requested the management for confirmation in the said post of full time peon messenger but he was threatened by the manager of the branch with reversion to the post of part time peon if he insisted for confirmation.He approached the union to negotiate in view ofamicable settlement of his claim but of no avail . He raised industrial dispute before the ALC Central Dehradun on 11- 4-94.But ultimately he was removed from the said post of fulltimepeon.

Management

Bareilly-243001.

APPEARANCES :

Shri Balak Ram in person with

hisA/R

Shri Brijesh Kumar Advocate Shri T.C. Gupta A/R for the Management

3625 G1/ 07-5

3. The protest was lodged by the union against such arbitrary , malafide and illegal action of the management . The complaint was also made to A.L.C. Dehradun . ALC issued show cause notice advising the manager to reemploy claimant. After his removal management appointed one Rajinder Singh a new hand to work on temporary basis in the same post against the post he was working . A conciliation proceeding before the ALC ended in failure .

4. The claimant has impugned the action of his reversion supersession as illegal and unjustified on various 6592

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929 [PART II-SEC. 3 ( ii) ]

promotions or for conversions from one post or category to another i.e. from sweepers to peons or from peons to clerks reference is made to para 498 of Sastry Award for perusal . The workman is not entitled to regularization as claimed.

grounds that the post of Peon/messenger at Keoralia Branch in which workman was appointed by way of promotion from part time workman as full time peon / mesenger w.e.f. 15-9-93 was permanent . It was incumbent upon the management in terms of para 495 of the Sastry Award to give him an appropriate letter/order that he was being appointed/promoted in the said existing post the management was required to fill it within three months in terms of clause 20.8 of the Bipartite Settlement dated 19-10-66 and he cannot be treated as temporary occupant of the said post . He shouldbe deemed to have been appointed to the post in question permanently despite the fact that he was not issued any appointment letter . That the appointment of the claimant by way of promotion from parttimeworkman to full time peon/messenger on 15-9-93 did not constitute a temporary appointment within the meaning of definition of temporary appointment as per terms ifBipartite Settlement dated 19-10-66 . That the workman was entitled to be given preference for filling the full time vacancy in view of the provisions of Bipartite Settlement . Evenotherwise he has preferential right . The claimant has even otherwise preferential right to be made permanent vacancy after completing six months satisfactory appointment in the permanent vacancy and he be deemed tohave been confirmed as full time Peon/Messenger in the permanent post . Management has acted arbitrarily and meted out to him hostile discrimination under article 14 and 16 of the constitution or he being member of S. C. S.T. employees , entitled to continue in the permanent vacancy/ post of peon/messenger in which he had been appointed/ promoted from 15-9-93 and he could not replaced by the new hand Shri RajinderSingh and after his removal which was promptedby malafides the management also acted in complete disregard the branch of the statutory provisions of Section 33 ( 1) (a) of the I.D. Act in as much as in view of Section 33 ( 1 ) (a) of the I. D. , Act by making appointment during the pendency of conciliation proceedings . The action ofthe management in removing/discontinuing Balak Ram from permanent post of Peon from 20-5-94 and in not confirming him as permanent peon from 15-3-94 is illegal and unjustified and in view of the above claimant requested to treat him as a permanent confirmed full time peon from 15-3-94 with consequential benefits of full pay scale and allowances etc. from 15-3-94 is holding the action of the management respondent as illegal and unjustified.

5. On merits his appointment with the bank as on temporary basis or part time basis as messenger etc. as mentioned above is not denied . It is stated that he was given chance to work as peon when the peon was on leave . It is further stated that management never held any recruitment process and appointed the workman as contended by him and he was never appointed against any substantive post or vacancy of a peon in the branch . It is denied that the management issued appointment letter to the workman for the post of a part time sweeper on permanent basis in Branch which as already stated is a small rural branch . Rest of the paras are denied as unfounded, misconceived . The taking of the matters by theUnion and proceedings before the ALC are not denied . It is stated that the workman was never appointed against substantive post and hence there was no Question of removing him or discontinuing him as peon as claimed. However, when permanent peon was not available on duty workman Balak Ram used to be deployed in place of permanent employed peon and he was paid on prorata basis. Pending posting regular vacancies one Shri Rajinder Singh was engaged and his employment was in accordance with the government guidelines to give preference tothose who worked for 240 days during the peirod January 82 to December , 1990. In that view of the matter therefore while engaging Shri Rajindra Singh the management did not commit any illegality . Even otherwise the workman Balak Ram had not acquired any vested rightto the post of a peon merely because he had been substituting the peon whowastemporarily absent . Part time employees employed as sweepers have a right to be appointed against full time vacancy falling vacant in the same cadre . His claim virtually tentamounts to an appointment in an excadre post by virtue of conversion which is not permissible as per guidelines prescribed by the workman . Proceedings by the learned ALC and reference order of the Government were/ are without any raison d' etre . Para 17 and sub paras are misconceived . The contentions of the Unions are misconceived devoid of any substance . It is submitted neither the workman was employed as peon nor the management removed him from the post of a peon rest of the paras are denied and that the workman is not entitledto any claim/relief as claimed.

6.Written statement was followed by rejoinder where- in the controverted facts of the written statement were denied and those of the claim statement were reiterated to be correct.

4. Claim was contested by the respondent management by filing written statement raising preliminary objections that the workman Balak Ram has been employed in the respondent management in the sub staff cadre as part time sweeper in there are several distinct and different categories or cadres of employees such as sweepers , peons , messengers , sepoys or watch and ward personnel , hamals, liftmen, drivers , electricians , fire fighting men , watermen or bhishtis etc. and all these are reckoned as distinct & different category for purposes of interse seniority and

7. Thereafter management examined Shri Bhupender Chaturvedi Senior Manager (Personnel ) in support of its case and proved his affidavit as Ex . MW1 / 1 . After cross 6593 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii) ]

examination management closed its evidence. Workman examined himself as WW1 in support of his case .

8. I have heard Shri Brijesh Kumar Advocate A/R for the workman and Shri T. C. Gupta Advocate A/R for the managemnet and perused the record meticulously.

The questions which arise for consideration are :

1. Whether the workman was entitled to be appointed as permanent part time sweeper and made permanent.

2. Whether the workman was promoted to the post of peon as claimed.

provision of law or rule . There is no evidence to show as to whether the vacancy against which the workman claimant has been working as a part time sweeper is liable to be converted as per the circular dated 23-8-93 placed on record . The respondent bank has also placed on record the letter dated 20-4-82 in respect of the appointment of the workman as part time permanent sweeper . This letter is an admitted one and can be taken into account . According to this letter perusal of this letter shows that the respondent Bank of Baroda pleased to appoint or engage the workman in bank service as part - time sweeper insubordinate cadre on 1/3rd salary and allowances etc. in the scale of full time workman of bank from time to time subject to his being found medically fit . He was on probation for a period of six months which was liable to be extended at the discretion of the respondent and his services were liable to be terminated by one months's notice or on payment of a month's pay and allowances in lieu of notice . And this letter dated 20-4-82 further stated that if, on the expiry of the period of probation , his work, conduct etc. , are found satisfactory , and provided he was found medically fit , he will be confirmed in the Banks service . He will, however , not be entitled to subscribe to the staff provident fund. There is also no evidence to show that the workman was appointed from part timeto full time messenger from 15-9-93 as claimedby him . Workman has also stated that one Rajinder Singh was appointed as Peon illegally on temporary basis after his services were discontinued which according to him amounts to unfair labour practice but the management has claimed that his appointment has been done according to rules . He ( workman) has not averred so in his affidavit . So there is no evidence that any misconduct has beencommitted by engaging/ appointing Shri Rajinder Singh.

10. In view of the avove discussions, I hold that the workman is not entitled to be appointed and confirmed as permanent peon as claimed and the action of the management in not confirming him as permanent peon is legal and justified. Award is , thus , made. File be consigned to record room.

Dated: 30-7-2207 SANT SINGH BAL, Presiding Officer

नई दिल्ली , 13 अगस्त, 2007

का.आ. 2530.- औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार पंजाब नेशनल बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय औद्योगिक अधिकरण जयपुर के पंचाट ( संदर्भ संख्या 30/95 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/350/94- आई. आर. बी- II ]

राजिन्द्र कुमार , डेस्क अधिकारी 9.Admittedly the workman claimant was appointed as part time sweeper in Sub Staff cadre in Keoralia Branch ofBank of the respondent and he has worked from 24-4- 82 to 20-5-94 and he has also worked occasionally as peon in the absence of a peon when such peon was on leave or absent . There is no evidence on record that the claimant was ever appointed as peon on substatntive/ permanenet vacancy of peon . Even in his statement in cross examination he admitted it to be correct that he was appointed against the permanenet part time sweeper and was working as such even today i.e. on 27-3-97 and he used to work in place of peon who ever was on leave or otherwise absent and he is also member of the panchayat of village even at present and he did not obtain any permission from the bank for contesting such election . His claim for promotion from Part Time permanent sweeper to thes post of peon is not maintainable for the reasons that there is no channel of promotion from part time sweeper to permanent peon . However in the circular dated 21-8-93 issued by the respondent bank which is placed on record , it is mentioned that 25 % of the vacancies accuring in the peons cadre should be reserved for being filled in by conversion from sweepers , farashes , chowkidar, etc. , who have put in a munimum of five years offull-time service even if they may not be possessing requisite qualifications but may possess elementary literacy and give proof of ability to read Hindi/English / Regional language . It is also mentioned in the circular whenever recruitment of peon is to be made , 25 % vacancies should be reserved for full - time permanent sweepers , farashes , chowkidars , etc. , who have put in a minimum of five years full time service , to be filled up as stated above . There is nothing on record to show that there were vacancies of temporary or permanent peon available for claimant or that as also on 21-8-93 . He has only worked as part time permanent sweeper so the benefit ofconversion of the post of peon vide the above circular , dated 21-8-93 is not available to the workman/claimant . No other rules have been shown to me that the workman is entitled to the promotion for the post of part time sweeper. So his claim for treating him from part time sweeper to full time permanent and confirming him as Peon in my view is not tenable legally in absence of any 6594

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929 [PART 11-SEC . 3 (ii) ] New Delhi , the 13th August, 2007

S.O. 2530. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the award (Reference No. 30/95) of the Central Industrial Tribunal Jaipur as shown in the annexure in the Industrial Dispute between the employers in relation to the management of Punjab National Bank and their workman , which was received by the Central Government on 13-8-2007 .

[No. L- 12012/350/94 - IR ( B - II ) ] RAJINDER KUMAR, Desk Officer

अनुबन्ध

केन्द्रीय औद्योगिक न्यायाधिकरण , जयपुर केस नं. सी.आई.टी. 30/95

रैफरेंस : केन्द्र सरकार , श्रम मंत्रालय , नई दिल्ली का आदेश क्रमांक एल-12012/350/94- आई. आर. ( बी.- 2 ) दिनांक 1-6-1995

2. रैफरेंस प्राप्त होने के बाद दर्ज रजिस्टर किया जाकर प्रार्थी यूनियन को नोटिस जारी किये गये कि वे अपना स्टेटमैंट ऑफ डिमाण्ड पेश करें । प्रार्थी यूनियन की ओर से दिनांक 9-3-2005 की पेशी पर श्री आर. सौ. जैन उपस्थित आये और क्लेम पेश करने का समय चाहा जो दिया गया । उसके बाद कुछ पेशियों पर प्रार्थी की ओर से कोई उपस्थित नहीं आया और पुनः नोटिस जारी किया गया जो यूनियन पर तामील हो गया जिसकी रसीद पत्रावली पर संलग्न है । दिनांक 18-10-2006 को प्रार्थी प्रतिनिधि श्री आर.सी. जैन ने उपस्थित होकर अधिकार पत्र व क्लेम पेश करने हेतु अवसर चाहा जो दिया गया । विपक्षी को भी नोटिस जारी किया गया और दिनांक 21-4-2007 की पेशी पर विपक्षी की ओर से श्री वी. के. जैन उपस्थितआये । इतने समय से क्लेम पेश नहीं होने पर व और समय दिये जाने पर उन्हें ऐतराज रहा और उचित आदेश के लिए पत्रावली दिनांक 5-5-2006 को नियत की गई । दिनांक 5-5-2006 को भी प्रार्थी की ओर से कोई उपस्थित नहीं आया और अप्रार्थी की ओर से श्री वी. के. जैन को क्लेम पेश नहीं करने पर ऐतराज रहा किन्तु न्याय हित में क्लेम का एक अवसर दिया जाकर पत्रावली उचित आदेश हेतु दिनांक 8-5-2006 को नियत की गई । दिनांक 8-5-2007 को दोनों पक्ष के प्रतिनिधि उपस्थित थे किन्तुक्लेम पेश नहीं किया गया और आदेशिका पर दिये गये आदेशानुसार " क्लेम पेश करने हेतु अब तक प्रकरण 9-3-2005 से चल रहा है, क्लेम पेश करने हेतु पर्याप्त अवसर दिये जा चुके हैं, अतः अब क्लेम का हक बंद किया जाता है । " अप्रार्थी प्रतिनिधि ने भी कोई स्टेटमेंट ऑफ डिमाण्ड पेश करना नहीं चाहा अतः दोनों पक्षों की बहस सुनी गई । श्री चरनजीव लाल दफतरी द्वारा प्रेसीडेंट , ऐसोसिएशन ऑफ पी.एन.बी. एम्पलाईज , राजस्थान , आचारियों की हवेली , किशनपोल बाजार , जयपुर

-प्रार्थी

बनाम

क्षेत्रीय प्रबन्धक, पंजाब नेशनल बैंक, ए-5 , ट्रांसपोर्ट नगर , जयपुर

-अप्रार्थी

उपस्थित

3. अप्रार्थी के प्रतिनिधि की बहस है कि प्रार्थी यूनियन द्वारा जो विवाद प्रार्थी का दफतरी भत्ता वापस लिये जाने की वैधता के संबंध में उठाया गया है उसकी पुष्टि में कोई क्लेम द्वारा बावजूद पर्याप्त अवसर न्यायाधिकरण द्वारा दिये जाने के पेश नही किया गया है न ही कोई साक्ष्य पेश कर क्लेम को साबित कराया गया है । ऐसे में यही माना जायेगा कि जो कार्यवाही अप्रार्थी द्वारा की गई है वह उचित है और श्रमिक कोई राहत पाने का अधिकारी नहीं है । प्रार्थी प्रतिनिधि इसके विपरीत कुछ विशेष कारण क्लेम पेश नहीं करने का बता पाये ।

पीठासीन अधिकारी श्री गौतम प्रकाश शर्मा ,

आर.एच.जे.एस.

प्रार्थी की ओर से :

श्री आर. सी. जैन

अप्रार्थी की ओर से :

श्रीवी. के. जैन

दिनांक अवार्ड : 26-5-2007

अवार्ड

4. मैंने बहस पर गौर किया । मेरे मत में बिना क्लेम व साक्ष्य के यह नहीं कहा जा सकता कि प्रार्थी को दिया जाने वाला दफतरी भत्ता किन परिस्थितियों में वापस लिये जाने के आदेश अप्रार्थी द्वारा जारी किये गये है और पूर्व में किस विशेष कार्य के लिए यह भत्ता प्रार्थी को दिया जाता था । ऐसे में अप्रार्थी द्वारा पारित आदेश दिनांक 3-9-93 का प्रार्थी द्वारा खण्डन नहीं किया जा सका है और प्रार्थी कोई राहत इस रैफरेंस के माध्यम से प्राप्त करने का अधिकारी नहीं है । अतः केन्द्र सरकार द्वारा भेजे गये निर्देश का उत्तर निम्न प्रकार दिया जाता है :

" पंजाब नेशनल बैंक , जयपुर के प्रबन्धन के आदेश दिनांक 3-9-93 द्वारा प्रार्थी श्री चरनजीव लाल , दफतरी का दफतरी भत्ता विथड़ाकिये जाने की कार्यवाही उचित एवं वैध है । प्रार्थी कोई राहत पाने का अधिकारी नहीं है । "

1. केन्द्र सरकार , श्रम मंत्रालय , नई दिल्ली ने उपरोक्त अधिसूचना के जरिये इस आशय का विवाद इस न्यायाधिकरण को अधिनिर्णय हेतु निर्देशित किया है कि क्या पंजाब नेशनल बैंक जयपुर के प्रबन्धन द्वारा श्री चरनजीव लाल दफतरी का आदेश दिनांक 3-9-93 द्वारा दफतरी भत्ता वापस ले लेने ( विथड़ा) की कार्यवाही उचित एवं वैध है ? यदि नहीं तो श्रमिक किस राहत का अधिकारी है?

गौतम प्रकाश शर्मा, न्यायाधीश 6595 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II-खण्ड 3 ( ii) ]

नई दिल्ली, 13 अगस्त, 2007

and at all times relevant to the present dispute , his service conditions were governed by the provisions of the Sastry Award, as modified in the Desai Award and as further modified in the BPS entered into between the management ofvarious banks including Bank of India and their workmen from time to time .

का.आ. 2531.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , नं. - 2 नई दिल्ली के पंचाट ( संदर्भ संख्या 111/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/71/2005- आई आर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी

That the Bank of India is a nationalized Bank and a statutory corporation , createdby Banking Companies (Acquisition and Transfer of Undertakings ) Act, 1970 (Act No. 5 of 1970 ) and is, therefore , a " State " within the meaning ofArticle 12 of the Constitution of India and has constitutional duty to act fairly and equitably vis a vis all its employees in accordance with Articles 14 and 16 ofthe Constitution.

New Delhi , the 13th August, 2007

That in August, 2003 when the workman was posted atBakhtawarpur Branch of the Bank, he was placed under suspension by an order dated 14-08-2003 issued by Chief Manager and Disciplinary Authority at New Delhi, Zonal Office of the Bank .

S.O. 2531. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947 ) , the Central Governrnent hereby publishes the Award (Ref. No. 111/ 2005) ofthe Central Government Industrial Tribunal -cum- Laour Court , No. 2, New Delhi as shown in the Annexure in the Industrial Dispute between the management of Bank of India and their workman , received by the Central Government on 13-8-2007 .

[No. L-12012/71 /2005 - IR (B - II) ]

That the said Chief Manager and Disciplinary Authority subsequently issued a charge- sheet dated 08-09-2003 to the workman , simultaneously instituting a departmental inquiry against him with the appointment of anInquiry Officer to hold the inquiry by an order of the same date .

RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE THE PRESIDING OFFICER CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, NEW DELHI

That the Inquiry Officer commenced the inquiry on 01-10-2003 which was concluded on 24-11-2003 , whereafter the Presenting officer of the management and the defence representative of the workman submitted their respective writtenarguments to the Inquiry Officer .

PRESDING OFFICER :

R. N. RAI .

I.D. NO . 11/2005

-1st Party

PRESENT : Sh . J. Buther

-2nd Party

Sh. RajatArora

In the matter of:---

Sh . Suresh Chand,

BG-6/10 -C, Paschim Vihar,

New Delhi- 110063

Versus

That the Disciplinary Authority then issued to the workman a show cause punishment notice dated 14-1-2004 enclosing therewith a copy of the findings ofthe InquiryOfficer dated 15-12-2003 , thereby holding the charge against the workman as proved and asking the workman to show cause why the punishment of discharge from service , as proposed in the above notice , should not be given to him. Copies of the aforesaid show cause punishment notice dated 14-01-2004 and findings of the Inquiry Officer dated 15-12-2003 are being enclosed as Annexure W/IV and W/5 respectively hereto .

The Zonal Manager , Bank of India (New Delhi Zone) , Level-V, Tower - I, Jeevan Bharti Building, Connaught Circus, New Delhi - 110001.

That the workman appeared before the Disciplinary Authority on 22-01-2004 and made his written and oral submissions against the order of proposed punishment . Thereafter the disciplinary authority passed the punishment order dated 24-01-2004.

AWARD

The Ministry of Labour by its letter No. L- 12012/71/ 2005 IR[ (BII ) ] Central Government 01-09-2005 has referred the following point for adjudication.

The point runs as hereunder:

"Whether discharging the services of the workman Shri Suresh Chand from the management of Bank of India is just, fair and legal? If not, to what relief the workman is entitled to and from which date ."

That the workman then preferred an appeal to the Appellate Authority of the Bank on 13-03-2004 against the punishment order of the disciplinary authority which was heard on 01-05-2004, whereafter the appellate authority passed orders dated 07-05-2004 , thereby dismissing the appeal of the workman . Copies of the appeal of the workman, his submissions made before the Appellate Authorityon 01-05-2004 and order of the Appellate Authority dated 07-05-2004 are being enclosed as Annexure W/7, W/8 & W/9 respectively hereto.

That aggrieved by the rejection of his appeal by the Appellate Authority the workman sent a representation The workman applicant has filed statement of claim. In the statement of claim it has been stated that the workman wasappointed as a staff clerk in Bank of India on 4-7-1983 6596

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929 [ PART II-SEC . 3 (ii)]

subjecting him to a disciplinary inquiry . The denial of such opportunityto the workman ,was therefore , also manifestly violative of the principles of natural justice.

dated 30-11-2004 to the Chairman of the Bank , for reconsideration of the punishment given to him , followed by a reminder letter dated 27-12-2004, copies of which are being enclosed as Annexure W/10 & W/ 11 respectively hereto.

That the facts of the case being as briefly stated hereinbefore, the workman submits that the action of the Management of Bank of India in discharging the workman from service w.e.f. 24-01-04 is illegal , unfair and unjustified onthe following , among other GROUNDS.

That as the above representation of the workman to the Chairman of the Bank evoked no response or reply from him, the workman was left with no option but to raise the present dispute in the matter before ALC( C) , New Delhi .

That the facts of the case being as briefly stated hereinabove , the workman submits that the action of the management of Bank of India in discharging the workman from service w.e.f. 24-01-2004 is illegal , unfair and unjustified.

Because the very institution of the enquiry against the workman by the Management was illegal in as much as that no opportunity was given to him by the Disciplinary Authority for giving his explanation as to the charge against him before instituting the enquiry , which omission on the part of the Disciplinary Authority was in contravention of the provisions of the Bipartite Settlement dated 19-10-66 and also in violation of the principles of natural justice.

"An employee against whom disciplinary action is proposed or likely to be taken shallbe given a charge- sheet, clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry , sufficient time being given to him to prepare and give his explanation.

In the present case, the disciplinary authority had instituted the inquiry simultaneously with the issual of chargesheet without/before giving the prescribed opportunity to the workman . Hence the very institution of the inquiry was invalid. In support of his above submission, the workman refers to a judgment of Orissa High Court (DB) in Bhaskar Patra Vs. Punjab and Sind Bank (reported in 2000-1 - LLJ 802), where after discussing the provisions ofClause 19.1 ofthe BPS, it has been held that " if a particular procedure is laid down for initiating disciplinary inquiry, the same has to be scrupulously followed."

In the Present case, the Disciplinary Authority had instituted the enquiry simultaneously with the issual of chare - sheet without /before giving the prescribed opportunity to the workman . Hence , the very institution of the enquiry was invalid. In support of his above submission , the workman refers to a judgement of Orissa High Court ( DB) in Bhaskar Patra V. Punjab & Sindh Bank (reported in 2000- I - LLJ - 802) , where after discussing the provisions of Clause 19.1 of the Bipartite Settlement , it has been held that " If a particular procedure is laiddown for initiating disciplinary enquiry , the same has to be scrupulously followed."

That there are another fatal infirmity is in the institution of the inquiry in the present case in as much as thatthe disciplinary authority had neither disclosed in the chargesheet the evidence, if any, on the basis ofwhich he had framed the charge against the workman , nor had it annexed to the chargesheet any list of such evidences , which showed that it had framed the charge without considering any evidence in its support. It is submitted that a charge can be framed against an employee only when there is some evidence with the disciplinary authority sufficient to frame the charge . In State of UP Vs. Bashistha Narain Singh (reported in 1973 Lab I. Cases 717, the High Court of Allahabad has held that non-disclosure in the chargesheet of the information about the evidence to be used against the delinquent in support of the charges amounts to denial of a reasonable opportunity to defend himself effectively .

Because there was another fatal infirmity in the institution of the enquiry in the present case in as much as that the Disciplinary Authority had neither disclosed in the chargesheet the evidence , if any on the basis of which he had framed the charge against the workman , nor had it annexed to the charg- sheet any list of such evidences , which showed that it had framed the charge without considering any evidence in its support . It is submitted thata charge can be framed against an employee onlywhen there is some evidence with the Disciplinary Authority sufficient to frame the charge . In State of UP v. Bashistha Narain Singh ( reported in 1973 -Lab . I. Cases 717), the High Court of Allahabad has held that non disclosure in the charge-sheet of the information about the evidence to be used against the delinquent in support of the charges amounts to denial of a reasonable opportunity to defend himself effectively.

In fact the disciplinary authority had decided to institute inquiry against the workman without giving him the opportunity of giving explanation to the charge framed against him, which was evident from the fact that it had evenappointed the Inquiry Officer on the day the inquiry was instituted. It has been held by Orissa High Court in Neelkanth Sahu Vs. Registrar Co- op . Societies ( 1978 Lab - I Cases - 1530) that appointment of Inquiry Officer cannot be made without first obtaining the statement of defence of the charged employee to the chargesheet and considering the same .

Had the disciplinary authority been fair enough to give opportunity to the workman to give his explanation as tothe charge against him, he could have , by his explanation , tried to convince the disciplinary authority that he was innocent of the charge and there was no justification for

Because in fact, the Disciplinary Authority had decided to institute enquiry against the workman without giving him the opportunity of giving explanation to the charge framed against him, which was evident from the fact that it had even appointed the Enquiry Officer on the day the enquiry was instituted. It has been held by Orissa High Court in Nelkanth Sahu V. Registrar Co.op. Societies (1978 - Lab I. Cases - 1530) that appointment of Enquiry [ भाग II-खण्ड 3 (ii) ]

Officer cannot be made without first obtaining the statement of defence of the charged employee to the charge -sheet and considering the same . Because had the Disciplinary Authority been fair enough to give opportunity to the workman to give his explanation as to the charge against him, he could have , by his explanation , tried to convince the Disciplinary Authority that he was innocent of the charge and there was no justification for subjecting him to a disciplinary enquiry . The denial of such opportunity to the workman was , therefore , also manifestly violative of the principles of natural justice .

Because when the very institution of enquiry against the workman by the Disciplinary Authority was invalid , as brought out in the preceding grounds (A) to (D) , the enquiry subsequently held by the Enquiry Officer , his findings and the orders passed by the Disciplinary Authority on the basis of such enquiry also stood vitiated.

Because in the absence of any evidence in support of the charge having been decided by the Disciplinary Authority at the time of framing the charge , the enquiry was allowed by the Enquiry Officer to proceed solely on the basis of the evidence decided by the Presenting Officer of the Management after the institution of the enquiry , which was neither proper nor permissible inasmuch as that the function of the Presenting Officer was limited only to present the case of the Management on the basis of evidence to be decided by the chargce- sheeting Authority atthe time of framing the charge . It is stated that the framing of the charge by the charge- sheeting Authority without considering/deciding any evidence in support thereof and leaving it to another person to decide such evidence afterwards was like putting the cart before the horse and , therefore , the enquiry conducted on the basis of evidence decided by a person other than the charge- sheeting/ Disciplinary Authority was most improper and suffered from a fatal legal infirmity.

Because though the workman had submitted to the Enquiry Officer a list of 7 documents to be called from the Management to enable him to effectively cross - examine the Management witnesses , but the Enquiry Officer allowed only two of these documents to be produced and arbitrarily disallowed the production on the remaining documents with a cryptic order that these were not relevant for the enquiry, without adducing a single reason as to why the same were not considered relevant for the enquiry by him . It is stated that as the non - production of these disallowed documents which included the preliminary investigation report came in the way of the workman to effectively cross- examine theManagement witnesses , the enquiry was clearly held in violation of the principles of natural justice.

Because the Enquiry Officer took no steps to cause producton of any official from the Nationalised Bank Employecs ( S.E. ) Coop . N. A. Thrift & Credit Society to prove the gravement of the charge against the workman thatthe signature of the Bank Officer on the No- objection Certificate-cum- Undertaking was forged by the workman and thus deprived the workman of vital opportunity of disproving the said charge , which the workman could have done on cross examination of such official of the said Society.

6597

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

Though the onus to prove the charge framed against the workman by the Disciplinary Authority lay on the Management, but the Enquiry Officer , instead of first showing in his findings as to how the charge was proved against the workman from the evidence produced by the Management in the enquiry, adopted a reverse approach by finding fault in the defence of the workman against the charge, which showed the biased attitude of the Enquiry Officer in recording his findings .

Though the workman had denied the charge at the very commencement of the enquiry , the Enquiry Officer tried to prove the charge in his findings by relying on evidence which was not legally admissible i.e. ' the photo stat copyof the No- objection Certificate - cum -Undertaking receivedby the Management from the Society. The Enquiry Officerignored the well -accepted principle of law that no finding can be based on the photostat copy of a document whether the signature of person appearing on such photostat copy has been made by the person concerned or has been forged by some other person . Even a handwriting expert cannot base his opinion on photostat copy of a document to identify a signature appearing thereon . In the present case , it was the case of the Management that the No- objection Certificate - cum Undertakingwhich was given by the workman to the Society had forged signature of Bank's Officer, Mr. K.S. Mehra, whereas the defence of the workman was that he had submitted the said document to the society, without the signature of any officer of the Bank . So unless the original of this document was called for from the Society and produced in the enquiry, it could not be ascertained as to whether the document was signed by the officer concerned orwhether the signature of that officer on the said document had been forged by some one and if so, by whom it had been forged. However , neither the Management nor Enquiry Officer took any steps to cause the production of the original No - objection Certificate-cum - Undertaking and theEnquiry Officer simply relied on photostat copy of the said document to give a finding that the workman had obtained loan from the Society on the basis of the said document which had the forged signature of the Bank Officer , Mr. K.S. Mehra .

When neither of the two witnesses of Management who were examined in the enquiry had identified the writings on the said No - objection Certificate-cum- Undertaking to be those of the workman , nor had they testified that the signature of K. S. Mehra appearing thereon had been made in the writing of the workman and when , in fact, there was absolutely no other evidence to the above effects, the findings of the Enquiry Officer, holding the charge against the workman as proved was manifestly perverse for the reason of not being based on any substantive , reliable or legally admissible evidence of the Management .

Because though the workman had at the time of showing cause against the orders of proposed punishment brought out sufficient mitigating/extenuating circumstances including his past clean and unblemished record justifying reduction in the proposed punishment, but the Disciplinary Authority did not consider these submissions of the 6598

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929 [PART II-SEC. 3(ii )]

the Management or the bank was unable to justify the hostile discrimination meted out to the workman, which is all the more glaring because the charge in the case of the workman was not even proved by any substantative , admissible evidence of Management in the enquiry.

workman while passing the punishment order , thereby disregarding the following provisions of clause 19.12 @ of the Bipartite Settlement " 19.12@- In awarding punishment byway ofdisciplinary action, the authority concerned shall take into account the gravity of misconduct , the previous record, if any, of the employee and other aggravating or extenuating circumstances , that may exist."

Because though at the time of personal hearing of his appeal , the workman had pointed out before the Appellate Authority that in number of cases of the employees of the Bank, who had been proceeded against departmentally on identical charges , they were let offwith the punishment of reduction of pay in the time scale and had pleaded for being meted out the same treatment in the matter of punishment , but the Appellate Authority altogether omitted to consider the aforesaid plea of the workman , nor did it give any reason in its order dated 7-5-04 as to why the above most reasonable plea of the workman was not acceptable to it.

The management has filed written statement. In the written statement it has been stated that the claimant- workman Shri Suresh Chand during his tenure with the management bank was posted as Clerk-cum-Cashier at the office of Jhandewalan Currency Chest from 31-01- 2000 to 29-08-2002 . He applied for sanction of loan of Rs.1 Lac to the Nationalised Bank Employees SE Co- operative NA Thrift and Co - operative Society Limited, Rohtak and submitted a No objection Certificate to them purported to be issued by the Officer - in Charge of the Bank , Jhandewalan Currency Chest for sanction of the loan . The No-objection Certificate contained an undertaking for deduction of monthly installments by the bank. 1t was revealed that the said undertaking/NOC contained the forged signatures of the Officer - in- Charge , Jhandewalan Currency Chest.

The closed-minded approach of the Managementto the demand of the workman for justice and equitable treatment is borne out from the fact that although even after the order of the Appellate Authority , the workman had submitted a representation dated 30-12-04to the Chairman ofthe Bank for undoing the discrimination meted out to him in the matter of quantum of punishment and for reducing the punishment of discharge form service given to him to one of reduction of pay , as given in identical cases, but the Chairman of the Bank did not even reply to the above representation of the workman , nor did he convey any reason to the workman as to why the workman had been singled out for being given the drastic punishment of termination of service while other workmen of the Bank , facing identical charges , had been let off with the lesser punishment of reduction in pay. It is stated that in his above representation dated 30-11-04 to the Chairman of the Bank the workman had cited the following 7 cases in which the employees concerned were proceeded apainst with departmental enquiries on identical charge as levelled against the workman, but in their cases , the Management had decided to award to them the punishment of reduction of pay by a few stages in the time scale .

That looking to the serious nature of misconduct which was fraudulent in nature and reflected upon the integrity of the workman Shri Suresh Chand , he was placed under suspension vide orders dated 14-08-2003 and disciplinary action was initiated against him in accordance with the provisions of the BPS governing his services condition and a charge - sheet dated 08-09-2003 was issued to him. The workman was given ample opportunities during the course of the inquiry proceedings to put forth his defence . The Inquiry Offcer after conduct of the departmental inquiry submitted his report dated 15-12-2003 and the charges levelled against the workman were held proved. The claimant was granted a personal hearing by the disciplinary authority on 22-01-2004 and thereafter a punishment ofdischarge from service with superannuation benefits and without dis- qualification for future employment was imposed upon him vide orders dated 24-01-2004 .The claimant had also preferred an appeal before the appellate authority . The appellate authority after considering the said appeal has rejected the same and confirmed the orders of the disciplinary authority vide orders dated 07-05-2004 . It is stated that the action of the management in the holding of the inquiry as well as the imposition ofpunishment by the disciplinary authority was done in accordance with the principles of natural justice and full opportunity was given to the claimant workman to defend his case . The action was initiated and was concluded against the workman in terms of the provisions ofthe BPS. The act of misconduct committed by the claimant were serious and grave in nature and reflected on the integrity of the claimant . The management has been considerate enough inasmuch as all the superannuation benefits have been granted to him and the action of the management may be upheld as such and the reference be answered accordingly.

Shri Vijay Mehra , Special Assistant , Industrial Finance , New Delhi Branch . Shri Kishore Chowdhary, Computer Operator, Asaf Ali Road, New Delhi Branch . Shri Jagdish Mathur , Staff Subordinate , Karol Bagh , New Delhi Branch. Shri Ashok Kumar , Lajpat Nagar, New Delhi Branch . Shri Rajbir Singh , Lajpat Nagar , New Delhi Branch . Shri Ashok Kumar , Okhla Industrial Area , New Delhi Branch . Shri Sarbjit Singh , Pachsheel , New Delhi Branch . After citing the aforesaid 7 cases in his representation dated 30-11- 2004, the workman had pleaded therein that the Bank being a Nationalised Bank has a constitutional obligation to give equal treatment to all its employees and could not discriminate among similarly situated employees and that since the charge against him was similar , he should not be discriminated against in the matter of punishment . However , the Chairman of the Bank preferred to keep discrete silence on the workman's above representation , which shows that

Itisa matter of record that the management bank is a nationalised bank and is a State within the meaning of Article 12 of the Constitution of India. It is stated that the 6599 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3 (ii ) ]

management had acted fairly and in accordance with the provisions of service regulations .

from the same.Moreover , while issuing the memorandum dated 08-09-2003 under para 3 ( a) the claimant was given an opportunity to submit his explanation to the charges . It is further pointed out that while placing him under suspension the alleged acts of omission on his part were duly brought to his notice.

Itisa matter of record that the claimant was placed under suspension vide orders dated 14-08-2003 . It is a matter of record that a chargesheet dated 08-09-2003 was issued to the claimant and the Inquiry Officer was appointed by the management . It is a matter of record that the inquiry against the claimant had been concluded. The claimant hadparticipated in the inquiry and was represented by his defence representative . It is a matter of record that the personal hearing was given to the claimant workman bythe disciplinary authority of the bank .

It issubmitted that the chargesheet dated 08-09-2003 was issued to the claimant and the same was issued in accordance with the regulations . All reasonable opportunity was given to the claimant during the course of the inquiry and as such no prejudice has been caused to him. It is stated that during the course of the inquiry before the commencement of the evidence of the witnesses , the list of documents and witnesses were duly given to the workman alongwith the photocopies of documents . The witnesses were examined thereafter on the date of hearing , as such all opportunities were given in accordance with the provisions of principles of natural justice and no prejudice was caused to the workman to defend himself.

It is a matter of record that the claimant workman preferred an appeal against the orders of the Disciplinary Authority to the Appellate Authority and the Appellate Authority has rejected the same . The Appellate Authority had considered the submissions made by the claimant in his appeal and the Appellate Authority orders has been passed after due application of mind.

Itisfurther pointed out that there is no provision for review under the regulations after the decision of the Appellate Authority which is available to the claimant. The Disciplinary Authority and the Appellate Authority had considered the entire aspects of the case of the claimant including the inquiry records and thereafter appropriate orders were passed.

It issubmitted that the inquiry was constituted in terms of the service regulations applicable tothe workman and during the course of the inquiry reasonable and sufficient opportunity was granted to the claimant to prove his defence . That vide the memorandum dated 08-09-2003 under para 3 (a) the claimant was given an opportunityto submit his explanation to the charges . Even while placing him under suspension, the alleged omissions on his part were duly brought to the notice of the claimant.

It is submitted that there has been no violation of principles of natural justice as alleged. The Inquiry Officer hasgiven his findings finding the claimant workman guilty of the charges and hence appropriate disciplinary action has been taken against the claimant workman . The claimant was given sufficient and reasonable opportunity and no prejudice has been caused to him .

It isstated that the action of the management bank in discharging the workman vide orders dated 24-01-2004 is legal and just and the orders have been passed in accordance with the principles of natural justice and in accordance withthe regulations applicable to the workman . It is stated that the charges levelled and proved against the claimant were grave and serious in nature and the respondent bank could not keep in its employment a person of such dubious character and lacking in integrity.

It is stated that during the course of the inquiry the claimant was given a reasonable and sufficient opportunity to prove his case and as such the allegation made are wrong and vehemently denied.

It is stated that the provisions of the BPS being matter of record are not disputed. It is stated that the disciplinary action was initiated against the claimant in terms of the provisions of the BPS and according to the provisions of the service conditions applicable to him . It is stated that the claimant was given an opportunity to put forth his explanation in writing in response to the charge sheet .

It is submitted that the inquiry has been conducted inaccordance with the provisions of BPS and all possible and reasonable opportunity were provided to the claimant during the departmental proceedings . There has been no violation ofprinciples of natural justice.

It is stated that there has been no violation of provisionofclause 19.1 of the BPS . It is a matter of record that the orders passed by the disciplinary authority have beenpassed after due application of mind and after giving due opportunity to the claimant during the inquiry proceedings .

It is stated that the inquiry proceedings were conducted in accordance with the provisions of regulations andthere has been no prejudice which has been caused to the claimant workman by the conduct of the inquiry proceedings . The ctaimant was provided all possible opportunities in the inquiry proceedings to bring out his defence and thereafter appropriate disciplinary action has been taken against him. In fact the defence representative ofthe claimant made a statement before the Inquiry Officer on 17-11-2003 that he does not want to submit any documents/witnesses in the inquiry. A statement by the It issubmitted that the case of Bhaskar Parta would not be applicable in the facts and circumstances of the present case . In that case the petitioner was suspended on the basis of the vigilance report and the orders of suspension did not give any reasons for suspension . It is submitted that the procedure as laid down have been followed in the present case and there has been no deviation

3625 G1/07-6 6600

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007 /BHADRA 17, 1929 [PART II- SEC . 3 ( ii ) ] charged workman (claimant ) was given on 24-11-2003, wherein he admitted that he had signed the loan application and other documents.

well as the evidence brought before the Inquiry Officer and the order passed by the disciplinary authority are legal and just and have been passed after due application of mind.

It is stated that before issuance of the punishment order, a show cause punishment dated 14.01.2004 was issued to the claimant/ workman in which he was asked to givehis reply. Acopy of the findings of the Inquiry Officer was also made available to him.

It is stated that the orders of punishment passed by the disciplinary authority dated 24-01-2004 are legal and just and have been passed after due application of mind. The disciplinary authority has considered the reply to the proposed show cause notice given by the claimant/ workman and it is only thereafter appropriate orders have been passed.

It is submitted that the Appellate Authority has also considered the various submissions raised by the claimant/ workman during the personal hearing as also the appeal submitted by him . It is after consideration of all the above , the case of claimant that appropriate orders have been passed by the disciplinary authority and the same have beenconfirmed by the appellate authority. The Appellate Authority has also applied its mind through the various contentions raised by the claimant/workman. The orders are reasonable and just and are speaking orders .

It issubmitted that all the relevant and necessary documents as replied upon in the inquiry proceedings were either given to the claimant workman or inspection thereof was provided to him . It is stated that consequent upon the request of the claimant he was provided with the copy of the list of documents relied upon by the Presenting Officer in support of the charges as well as the list of witness and the same is apparent from the proceedings dated 08-10-2003 . The claimant workman was also given an opportunity to put forth his list of documents, witnesses in his defence . The Inquiry Officer has examined the relevancy of the documents , has allowed all the documents which were found relevant for the purpose of the defence to be produced and only those documents which were not considered relevant were not allowed, to be produced . There has been no prejudice whatsoever which has been caused to the workman/ claimant by the conduct of such inquiry proceedings. The copies of the documents which were rejected by the Inquiry Officer were not at all relevant and included attendance register of the Branch, copy of the No Objection Certificate issued by the bank to any other staff member, copy of the loan documents by any other staff member. These documents were irrelevant to the inquiry in respect of the claimant and were rightly rejected by the InquiryOfficer.

That the claimant had only made vague submissions regarding discrimination . No extenuating circumstances were brought to the notice of the Appellate Authority and hence the appeal preferred by the claimant was rejected.

It is submitted that all the relevant and necessary witnesses considered necessary for proving the charges were produced by the management during the course of the inquiry. It is submitted that it is not for the defence to ask for a witness from the management side . It is stated that if the claimant/workman had any occasion to call for any officials of the society he could have produced the same as his defence witness . It is stated that the charges have been proved against the claimant in view of the documentary as well as the oral evidence which has been relied upon in the inquiry proceedings.

It is pointed out that after the decision ofthe Appellate Authority there is no provision for review and hence the representation dated 30-11-2004 has no value . All possible and reasonable opportunities had already been given to the claimant in the inquiry and also by the disciplinary authority as well as by the appellate authority . As regards the various cases cited by the applicant , it is apparent from the said submission that the applicant was aware that such acts constitutes acts of misconduct and despite being in its know- how he has committed the misconduct which in fact increases the gravity and cannot be condoned. In similar case of Shri Rajbir Singh he has been imposed the punishment of dismissal from service which is more severe that the punishment of being discharged from service .

It is stated that the charges against the claimant have been proved in view of the documentary as well as oral evidence produced during the course of the inquiry . The exhibitMD 6 produced in the inquiry showed that the same has been signed by Shri K.S. Mehra, the Branch Incharge , Jhandewalan Branch . However Shri Mehra in his letter had denied that he had signed any such document or given any undertaking (Exhibit MD 7).

Itistherefore prayed that the present reference may be answered in favour of the management. The claimant was responsible for grave acts of misconduct and appropriate disciplinary action has been taken against him . It is therefore prayed that the present claim may be answered in favour of the management.

It is stated that the Inquiry Officer's findings are legal and just and have been made after due application of mind. The Inquiry Officer has considered the documents aswell as oral evidence brought before him and thereafter reached his conclusions .

The workman/applicant has filed rejoinder. In the 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.

It is a matter of record that the disciplinary authority has agreed with the findings /conclusions arrived at by the Inquiry Officer and had thereafter imposed the punishment ofdischarge upon the claimant/workman.

Evidence of both the parties has been taken.

It is stated that the disciplinary authority had applied its mind by considering the report of the Inquiry Officer as

Heard argument from both the sides and perused the papers on the record .

ト 6601 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3( ii) ]

approach by finding fault in the defence of the workman and found the charges proved by admitting illegal documents just as photocopy of no objection certificate cum undertaking received by the management from the society. Photocopies are not admissible in evidence.

Itwas further submitted that the workman has simply signed the loan application form and the handwriting expert has based his opinion on photocopy of document to identify the signature appearing thereon . The original document was not produced in the inquiry.

Itwas submitted from the side of the workman that the Disciplinary Authority has instituted an inquiry simultaneously with the issuance of the chargesheet before giving opportunity to the workman . According to the provisions of the BPS 19.1 and 19.12 an explanation from the employee should be called for before issuing chargesheet . The circumstances appearing against him should be set out in the show cause notice . Evedence to be adduced against the workman and it should be spelt out inthe chargesheet itself. Non -disclosure in the chargesheet about the evidence adduced against the delinquent and support of the charges amounts to denial of reasonable opportunity to defend himself effectively.

The workman has relied on 2000 I LLJ 802 and 1973 Lab I cases 717 and 1530 .

Mr. Mehra , bank officer has been examined by the management and he has deposed after seeing the signature that it was not his signature . A witness can identify even his photocopy signature . The other documents are not material.

In the instant case the management has taken the report of the handwriting expert . The workman had opportunity to move application for summoning the original documents and get the disputed signature compared with the admitted signature but no such application has been filed.The management has examined the handwriting expert . The workman has cross examined the witnesses , so sufficient opportunity to the workman has been given .

It is not necessary always to issue show cause as to why charges should not be framed and it should be given in every misconduct always . It depends on the nature of the misconduct and gravity of the misconduct . Inquiry can be instituted along with charges in case the charge is based on documentary evidence and the misconduct is of grave nature. Inthe instant case the allegation is that the workman forged the signature of Mr. Mehra , an Officer of the bank for obtaining loan from the Thrift Credit Society. It must have come to the notice of the bank that the signature of the Officer has been forged . In such chargesheet can be straightaway issued and inquiry can be simultaneously instituted . The case law cited by the management is not applicable. No explanation is required for the alleged act of forgery .

In a domestic inquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply and the Enquiry Officer can give finding only on the testimony of a solitary witness . In the instant case 2 (two) witnesses have been examined .

Itwas submitted from the side of the management that sufficient opportunity was given to the workman to cross examine the witnesses . He was given opportunity to produce his own defence evidence . The Disciplinary Authority gave him show cause notice . The Appellate Authority also gave him show cause notice . The orders have been passed by the D.A after taking into account the grounds mentioned by the workman in his objection .

The workman has not shown as to what prejudice was caused by not calling for explanation from him and by not disclosing the evidence to be adduced against him. The only document to be used in evidence is the loan form onwhich signature of Mr. Mehra has been allegedly forged . Mr. Mehra is the only witness to depose that the loan application form does not bear his signature and his signature has been forged . So in this particular circumstance of this case non- disclosure of evidence has not caused any prejudice to the workman applicant .

From perusal of the inquiry record it becomes quite obvious that sufficient opportunity has been given to the workman. Principles of natural justice have been observed during the course of inquiry.

The case law cited are not applicable in the facts and circumstance of the present case There is no fatal infirmity in the institution of the inquiry and serving of the chargesheet simultaneously as no prejudice has been caused to the workman .

It was further submitted that the workman has mentioned sufficient mitigating and extenuating circumstances including his past claim and un - blemished record justifying reduction in the proposed punishment but the A.A gave no consideration .

It was further submitted that the workman has called for list of 7 documents from the management to enable him to effectively cross - examine the management witness but the Enquiry Officer allowed only 2 of the documents to be produced and arbitrarily dis - allowed the production of the remaining documents with cryptic order that these were not relevant for the inquiry.

It was submitted that due to the non-production of these documents the workman could not effectively cross- examine the management witnesses .

It was submitted that during the personal hearing of the appeal the workman pointed out to the Appellate Authority that in a number of cases of the employees of the bank have been proceed against departmentally on identical charges . They were let off with the punishment of reduction of pay in the time scale . The workman has also pleaded before the Appellate Authority that he should be meted out the same treatment with the matter of punishment but the Appellate Authority altogether omitted to consider the aforesaid plea of the workman and it was not mentioned in the appellate order . The approach of the management is Itwas further submitted that the Enquiry Officer did not base his findings on the evidence produced by the management in the inquiry , but he has opted a reverse 6602

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929 [ PART II-SEC . 3( ii ) ] close minded just as equitable treatment has not been given to the workman .

The record establishes that Shri Vijay Mehra forged the signature of Sh . Vinod Gupta, Staff Officer for obtaining loan ofRs . 20, 000 and Shri Rajbir Singh forged the signature ofShri M.C. Mittal , Chief Manager of the bank on the loan application form of Rs . 22,000 . Shri Ashok Kumar forged the signature of Sh . Mittal on the loan application form of Rs.12,000. The records of 3 employees are available . It was submitted that the other employees have also forged the signature of Staff Officer on the loan application form.

It is true , that the workman has submitted in appealto the A.A. that the punishment of discharge from service should be modified and there should be order for reduction ofpay as given in identical cases . There is no mention in the appellate order as to why the workman has been given punishment of discharge while the other workmen of the bank facing identical charges have been let off of with the lesser punishment with reduction in pay. The workman has cited the case of 4 employees who were proceeded against on identical charges but the management has ordered of reduction of pay by a few stage in the time scale .

The workman has given the name of the employee proceeded against viz . S/ Shri Vijay Mehra , Special Assistant , Kishore Ch. , Computer Operator, Jagdish Mathus , Staff Subordinate , Ashok Kumar , Rajbir Singh and Shri Sarabjit Singh .

So all the 7 employees of the branch have allegedly forged the signature of the Staff Officer or Manager onthe loan application form for obtaining loan from Thrift Credit Society. The amounts of loan are not very huge. In case an employee obtains loan it is to be deducted from his salary along with interest, so it appears that some agent of Thrift and Credit Society had obtained the signature of these employees on loan application form with an assurance that he will seek the undertaking of the competent authority and that agent has forged the signature of the competent authority for approval of loan at that time.

The management has filed copies of chargesheet and the punishment order in respect of Shri Ashok Kumar & Shri Vijay Mehra. Sh . Vijay Mehra was charged for forging the signature of Shri Vinod Gupta , StaffOfficer for obtaining loan. His services have not been terminated but he has been retained in the bank with reduction of increments for 7 years. Shri Rajbir Singh is alleged to have forged the signature of Shri M.C. Mittal for obtaining loan of Rs.22 , 000 from the Thrift Credit Society . He has been dismissed from service . Shri Sushil Kr . has also allegedly forged the signature of Shri Mittal , Chief Manager of the branch on loan application form of Rs . 12,000 and he has been also inflicted the punishment of stoppage of all increments for 7 years in terms ofClause 19.6 (B ) of the BPS.

There are 2 chargesheeted employees whose quantum ofpunishment has not been placed on the record.

Itwas submitted from the side of the management that there may be extenuating circumstances and so there is discrimination in inflicting the punishment .

MW1 has admitted as under:

It cannot be even imagined that an employee of the bankwill forge the signature of his own Officer for obtaining loan of Rs . 20, 000, 22, 000 & Rs.12, 000 or any amount . The entile amount is to be paid back alongwith interest . So it will not appeal to a man of prudence , that an employeewill forgethe signature of his Officer for obtaining loan which is to be re-paid alongwith interest . The management has not considered this aspect of the case and it appears that the innocent employees have been punished for the forgery by some agent of Thrift and Credit Society. However , the workman and the other similarly situated employees did not adduce evidence during the inquiry that they have not forged the signature but their signature has been forged by the agent of Thrift and Credit Society. This point has not been raised and considered in the domestic inquiry . No evidence has been laid before this Tribunal . I have made this observation after going through the chargesheet and punishment inflicted on the employees and I am still holding the view that no employee will forge the signature in natural course to obtain loan . I have made general observation after perusing the chargeshect and punishment of several employees . The respondent should consider this aspect of the case .

" It is correct that I have said that there may be extenuating circumstances in the other cases but I do not know exactly except in one case the employce admittedthe charges . This witness has also admitted that the allegations leveled against the others were same as leveled against the workman. This witness has also admitted that 6 persons named in Para 12 of the claim were awarded minor /lesser punishment and are still continuing in the employment .

This witness has also admitted that he has averred in the affidavitthat there were extenuating circumstances in other cases but he did not know exactly except in one case, the employee admitted the charges .

It is true that the Disciplinary Authority and Appellate Authority have made discrimination while awarding the punishment. All the 7 employees have committed the same act of forgery on the similar loan application form relating to Thrift and Credit Society . Domestic inquiry has been conducted against all the employees but some employces have been retained in service with reduction of increment and this workman has been discharged from service .

It was submitted from the side of the management that Shri Rajbir Singh has been dismissed on similar charges being found proved . This workman has been discharged with all the retiral benefits . So the punishment given to this workman cannot be said to be shocking or dis-proportionate incomparison to Shri Rajbir Singh .

It becomes quite obvious from the cross - examination ofMW- 1 that 6 employees committed the same misconduct and faced the same charges but they were awarded minor/ lesser punishment . This employee has been discharged and one Shri Rajbir Singh has been dismissed where all the 7 employces were chargesheeted for allegedly forging the signature of K.S. Mehra , Sh . Vinod Gupta and Shri M.C. Mittal on loan application form.

6603

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II-खण्ड 3 (ii ) ]

management witness that charges issued to all the 7 employees are identical . This employee has been discharged whereas 5 others have been retained in service with reduction in their scale .

It has been held in 1983 ( 1 ) SLR 636 SC as under:-

Itis settled law that no discrimination can be made in the matter of punishment by any authority . There is no justification for terminating the service of this workman while retaining the other employees by reduction of increments . The nationalized banks are State under Art.12 of the Constitution and fair action is expected from them . They are under constitutional obligation to give equal treatment to all its employees and they should not make discrimination .

"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct , and that any penalty imposed disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution ."

Ithas been held in (2006 ) 6 SCC 548 as under:-

It is settled law that there should be same punishment for the same charges . In the instant case the charges are the same but punishments are different .

Ithas been further held in 1984 ( 1) LLJ 161 as under:

"There is , however , another aspect of the matter which cannot be lost sight of identical allegations were made against seven persons . The management did not take serious note of misconduct committed by six others although they were similarly situated . They were allowed to take the benefit of voluntary retirement scheme ." "Respondents failed to explain to the court the distinguishing features and therefore , we are satisfied in putting all of them in same bracket . On that conclusion the treatment meted to the present appellants suffers from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution . The court must accordingly interpose and quash the discriminatory action ."

The present case is squarely covered by the judgment ofthe Hon'ble Supreme Court . The Hon'ble Apex Court has held that the management made discrimination in awarding punishment and the Hon'ble Apex Court directed that same punishment to be given in identical cases .

In the instant case also the cases of 7 employees are identical and there is arbitrary action by the management in awarding punishment. This workman also deserves equal punishment.

"They sought reinstatement on the ground of equality of treatment with persons similarly situated . The prayer for reconsideration of the case was a step to be taken for reinstatement . We , therefore , reject the contention ofMr. Sharma , Ld . Counsel that we should remit the case to the High Court . "

The workman was discharged indiscriminately . The order of the management is illegal and arbitrary and infringes Article 14 of the Constitution.

" Logically the appellants must receive the same benefit which those reinstated received in the absence of any distinguishing feature in their cases . Accordingly , the appellants would be entitled to reinstatement in service . "

It becomes quite obvious from the above decisions of the Hon'ble Supreme Court that there should not be discrimination in punishment .

Shri Ashok Kumar etc. have been given punishment of stoppage of all increments for 7 years . This workman should have been given the same punishment . The order ofdischarge from service is illegal . The workman deserves reinstatement with stoppage of all increments for 7 years as it has been ordered in the case of Sh . Ashok Kumar .

The Hon'ble Supreme Court reinstated all the workmen on the ground of equality of treatment with employces similarly situated . There mustbe some distinguishing feature for inflicting different punishment .

This workman is not in active service since his discharge but the workman has been illegally discharged bythe management . Had he been given equal punishment , hewould have remained in service . However , the workman has not discharged his duties since his discharge . In the facts and circumstances of the case the workman applicant deserves reinstatement with only 50 per cent back wages and continuity of service and all other consequential benefits .

In the instant case it is admitted to the management that 7 employees forged the signature of Staff Officer of the bank on loan application form. Shri Ashok Kumar committed the same misconduct . It was observed that stoppage of increments for a period of 7 years on the CSE is commensurate with the gravity of the misconduct committedby the CSE and meet ends ofjustice .

The reference is replied thus:

Discharging the services of the workman Shri Suresh Chand fromthe management Bank of India is neither just, nor legal . The management should reinstate this workman alongwith 50 per cent back wages and continuity of service and all other consequential benefits after stopping all increments for 7 years within two months from the date of the publication of the award.

Award is given accordingly . Date: 07-08-2007.

R. N. RAI , Presiding Officer Inthe instant case the workman has been discharged from service whereas identical charge has been served on him. The management has made discrimination in awarding the punishment of discharge on this workman . There is no distinguishing feature . MW1 has admitted in his cross-examination that there is no inquiry held or pending against the workman except one under reference . The workman has discharged his duties satisfactorily , so the management cannot be permitted to take discriminatory action in view of Article 14 of the Constitution . The management is bound to award the same punishment in identical cases . It has been categorically admitted by the 6604

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929 [PART II-SEC . 3 ( ii )] नई दिल्ली, 13 अगस्त, 2007

का.आ. 2532.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार पंजाब नेशनल बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. - 2 , नई दिल्ली के, पंचाट ( संदर्भ संख्या 78/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल -12011/17/2004- आई आर( बी- II ) ] राजिन्दर कुमार , डेस्क अधिकारी

Kumar Sharma the workman was working as Spl . Assistant inSansad Marg Branch of PNB. During June, 1996 and alleged attempt was made by some persons to commit a fraud onthe bank amounting to Rs. 302400 at B.O. Sansad Marg, New Delhi . On 10th June , 1996, Shri Ashok Kumar Sharma was placed under suspension alleging his involvement in the case of alleged attempted fraud of Rs.302400 at B.O. Sansad Marg, New Delhi on 14th May, 1996 in SB A/c. 87392 and therefore, Shri Ashok Kumar Sharma was placed under suspension with immediate effect. It was also stated in the said letter that the chargesheet shall be served on him subsequently.

Thattheworkman Shri Ashok Kumar Sharma replied to the said letter denying the allegations of his involve- ment and requested for revocation of the suspension as the same was causing under hardship.

New Delhi , the 13th August, 2007 S.O. 2532.-- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 78/ 2004) of the Central Government Industrial Tribunal-eum- Laour Court No. 2, New Delhi as shown in the Annexure in the Industrial Dispute between the management of Punjab National Bank and their workman, received by the Central Government on 13-8-2007.

That the chargesheet was served on Shri Ashok Kumar Sharma on 29th June, 1996 marked as Annexure - II. the chargesheet was replied by Shri Ashok Kumar Sharma vide his letter dated 22nd July , 1996. The workman denied the allegations in the chargesheet and requested for the revocation of his suspension since it was causing hard- ship and also bad in law.

[No. L- 12011/ 17/2004- IR (B -II ) ] RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE THE PRESIDING OFFICER : CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LANOUR COURT- IL, NEW DELHI

Presiding Officer : R.N. Rai .

That the disciplinary authority ordered a departmen- tal inquiry into the truth of allegations with Shri B.S. Choudhary, Manager Scale 2 as Inquiry Officer and Shri Ramesh Kochar as Presenting Officer . The chargesheeted employee was defended by Shri K.R. Nagpal , General Secretary , PNB Employees ' Union Delhi as his defence representative .

I.D. No. 78/2004

Present :-Sh . Bharat Bhushan -1st Party Sh . Rajat Arora -2nd Party

In the matter of:--

The inquiry commenced on 12-10-1998 and con- cluded on 09-07-1999. After the conclusion of the inquiry, the parties were asked to submit their written brief.

Shri Ashok Kumar Sharma ( Spl . Asstt. ) , C/ o . PNB Employees ' Union, Delhi , 4824/24, Ansari Road, Daryaganj , New Delhi , NewDelhi .

Versus

That the Inquiry Officer gave his inquiry report dated 21-09-1999 (marked as Annexure VI) . The report clearly states that the charge No.1 which related to the alleged involvement of the CSE, as a result of which he was placed under suspension is not proved. Even in the fourth charge, the Inquiry Officer clearly stated that the charges has not been proved . This charge was alleged as collusion of CSE with some persons in defrauding the bank . While ordering the inquiry, the disciplinary authority added two more alle- gations .

The Sr. Regional Manager, Punjab National Bank, Regional Office: North Delhi Region, Rajinder Place, NewDelhi. AWARD

Issuing of the eheque book to a staff member Shri S.K. Sharma , an officer of the bank who was also placed under suspension AND

Violating the bank laid down norms as narrated in the charge No.2 (b ).

The Ministry of Labour by its letter No. L- 12011 / 17/ 2004 ( IR ( B - H ) Central Government Dt . 03-06-2004 has referred the following point for adjudication .

The point runs as hereunder :-

"Whether the action of the management of Punjab National bank (Sr. Regional Manager, Delhi Region ) ordering punishment of lowering down by one stage in the scale of Shri Ashok Kumar Sharma , Special Assistant is just and legal ? If not, what relief the workman is entitled to and from which date . "

That the charge No. 2 and 3 were framed on the ground of the technical issues pertaining to the issue of the cheque book to an officer working in the same branch as best it could be turned as minor misconduct and there- forethe CSE did not deserve such a harsh punishment of reduction of scale by one increment and withholding the wages to the tunc of almost Rs . 1 lac, taking the shelter of alleged negligence. These charges as alleged do not find place in the suspension letter marked as Annexure - 1 .

The workman applicant has filed statement of claim. In the statement of claim it has been stated that Shri Ashok

Thatagain at the decision of the disciplinary authority, theCSSE filed an appeal with the appellate authority on [ भाग II- खण्ड 3 (ii ) ]

6605

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

Charge No. 2

22-5-2000 (marked as Annexure VII) . The appellate authority rejected this appeal without giving any fresh reasons and the same is enclosed and marked as Annexure VIII .

On 27-03-1996while working on cheque books issue seat , you issued the cheque books in above SF A/ c No. 87392 ignoring bank norms, namely:

(a) You issued the cheque books to a third party without permission from competent authority.

That the bank denied to hand over the original vital documents as required to obtain the second opinion of the handwriting experts and for other references in the cause of natural justice . More so the bank had not undergone any financial loss in this attempted fraud.

(b) You ignored the fact that balance of Rs . 5001 , the minimum required for issuance of cheque books was not available in the account .

That none of the charges on which employee was placed under suspension could be proved and made to suffer on his part . He was not even remotedly connected with the seat on which the attempted fraud was tried.

(c) You did not put your signatures / initial on cheque books requisition slip as well as cheque books issue register as a token of having issued the cheque book.

Charge No. 3

On the cheque books requisition slip dated 27-03- 1996, you have written the SF A/ c . No. 87392 in your own handwriting.

Charge No. 4

That having failed to get justice at the hand of man- agement , the matter was taken up with the ALC ( C), New Delhi to direct the management of PNB to release the incre- ment stopped and pay him the wages for the period of suspension based on his alleged involvement . Needless to mention that even remotedly his involvement which has not been proved by the Inquiry Officer. Since no settle- ment could be arrived at between the parties , the concilia- tion proceedings ended in failure and the Central Govern- ment was pleased to refer this dispute to the Hon'ble Tribunal for adjudication .

On 14-05-1996, you wrote SFA/ c 87392 and amount Rs . 302400 on transfer credit voucher dated 14-05-1996 which was entered in the transfer journal for transferring the said amount of TPO No. 33/95 dated 17-10-1995 (is- sued by Dhamani Market , Jaipur and wrongly drawn on our Branch) to above SF A/ c . 87392. As such the amount was not at all required to be transferred to SF A/c . 87392 . You did this with a motive to defraud the bank .

That the action of the management of the respon- dent bank is unjust, illegal , unlawful and arbitrary . That the union has not initiated any other proceedings against his unjust , arbitrary and illegal act of the management .

The management has filed written statement. In the written statement it has been stated that the so called dis- pute has not been duly and validly espoused as envisaged under the provisions of the ID Act , 1947 inasmuch as the opposite party has not filed any document indicatinges- pousal of the so called dispute by the body of the workman . Accordingly, it is submitted that what has been referred to by the appropriate Government cannot be termed as " In- dustrial Dispute" as defined under section 2 ( k) of the said act and accordingly the same merits no consideration.

After the above charges were denied by Shri Sharma , departmental inquiry was constituted to look into the chargesheet issuedto Shri Sharma . Shri Sharma was provided with adequate opportunity to defend himself in the departmental inquiry as demanded by the rules andthe principles of natural justice . The Inquiry Officer submitted his report dated 21-09-1999 wherein the Charge No. II & III were reported to be proved whereas Charge No. I & IV were shown to be, not proved . The disciplinary authority after perusal of the whole inquiry record and the witnesses produced by management side as well as their cross exami- nation by the defence side , disagreed with the Inquiry Officer in that Charge No. IV was also considered as proved. This was also advised to Shri Sharma vide show cause notice dated 10-03-2000 .

Itissubmitted that the Hon'ble Tribunal may decide the issue of fairness of departmental inquiry as a prelimi- nary issue and in case the said preliminary issue is decided against the bank, accordingto the established law , the management reserves its right to lead evidence before the Tribunal to prove the allegations made in the chargehseet.

That Shri Ashok Kumar Sharma was placed under suspension on 10th June , 1996 after considering the report submitted by the handwriting expert in the matter of attempted fraud case of Rs . 3,02,000 after opening one fictitious SF A/c . in the name of one Mr. Arun Kumar at Sansad Marg, New Delhi Branch of the bank. Subsequently chargesheet dated 29-06-1996 was issued to Shri Ashok Kumar Sharma wherein undernoted lapses as attributed to him in this case were incorporated .

Charge No. 1

It is not admitted that the employee was placed under suspension on 10-06-1996 only on account of Charge No. 1 as per chargesheet dated 29-06-1996 . There were other charges also against Shri Sharma as narrated in the chargesheet and, therefore , he was placed under suspen- sion. Charge- II & III are duly established against Shri Sharma. However , Charge IV was shown to be not proved by the Inquiry Officer . The disciplinary authority differed here with the Inquiry Officer and the same was duly incor- porated alongwith reasons in the show cause notice dated 10-03-2000, which was served on the employee . It is also stated that the Charge II & III were part of the original chargesheet and were not added by the disciplinary authority later on as stated in the claim.

On 16-03-1996 , you helped in opening the fictitious SF A/ c . 87392 in the name of one Mr. Arun Kumar . You wrote the date i.e. 16-03-1996 in your own handwriting on cash deposit slip for opening the above account .

It is stated that the suspension letter is not supposed to contain the detail of charges against the employee . However, it could hint at the charges which are likely to 6606

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/ BHADRA 17 , 1929

come in the following chargesheet . The contentions of claimant under Para - 7 (page 2 of the claim) are , therefore , not admitted.

It is stated that all the available relevant documents were made available to the chargesheeted employee to enable him to present his defence . The absence of financial loss does not reduce the gravity of charge upon the chargesheeted employce .It is also stated that the negligence on part of the employee definitely jeopardized the bank's interest.

That in view of the submissions made hereinbefore , it is respectfully prayed that this Hon'ble Tribunal may kindly be pleased to hold the action of the bank in imposing punishment of " Bringing down by one stage in the scale of pay" under para 19.6 ( C) of BPS upon Shri Ashok Kumar Sharma as just, fair , legal and commensurate to the committed lapses and as such he is not entitled to any relief.

The workman applicant has filed rejoinder . In the 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 .

Evidence of both the parties has been taken .

Heard argument from both the sides and perused the papers on the record .

Itwas submitted from the side of the workman that the management framed 4 charges against the workman. Charge No.1 , 3 & 4 relate to helping in opening of fictitious A/c . No. 87392 and the role assigned to the workman is regarding writing the date 16-03-1996 in his own handwriting on cash deposit slip for opening the above A/ c . No. 87392. Charge No. 3 relates to writing the same SF A/ c . No. 87392 on the cheque books requisition slip dated 27-03-1996 by the workman . Charge No. 4 is in respect of writing SF A/ c . No. 87392 and amount of Rs . 302400 on transfer credit voucher dated 14-05-1996 . It is alleged that the workman attempted to defraud the bank by helping in opening fictitious account No. 87392 and writing date on cash deposit slip and writing Account number on the cheque book requisition slip and writing again SF A/ c . No. 87392 and amount of Rs . 302400 on transfer credit voucher .

Ittranspires from perusal of the inquiry report ofthe Enquiry Officer and that of the Disciplinary Authority that the Enquiry Officer found charge No. 2 and 3 proved and he did not find Charge No. 1 and 4 proved . However , the Disciplinary Authority found charge No. 4 proved disagreeing with the findings of the Enquiry Officer in respect of charge No. 4 .

It was further submitted that the handwriting expert was examined during the course of inquiry and he stated that the disputed writings just as date etc. are in the handwriting of the workman . The workman asked for the original documents on which he has allegedly written the date and A/c . No. The original document was not supplied to the workman so the workman was deprived of the opportunity of getting disputed writings verified with the specimen writing. The management should have supplied the original document to the workman for verification of

[ PART II-SEC . 3 ( ii ) ] the disputed writings with the admitted writings of the workman .

It was open to the workman to summon those documents in the court and get the same verified before the Tribunal /Court . The workman was afforded sufficient opportunity to give evidence . He may have prayed for getting the disputed writings compared with his admitted writings . However , the workman did not avail of the opportunities.

Itwas further submitted that the workman issued cheque book to staff member , Shri S.K. Sharma without verifying the balance and without permission of the competent authority and he did not put his signatures/ initials on the cheque book requisition slip as well issue register as a token of having issued the cheque book .

TheEnquiry Officer has found Charge No. 2 proved. Shri S. K. Sharma was an Officer of the bank posted in that branch at that time. The management has also placed him under suspension for violating the norms .

It becomes quite obvious from perusal of the records that the workman did not check the minimum balance in the SF A/ c. No. 87392. His plea is that he did not check it as it was already checked by the Incharge. He also did not put his signature on the cheque book issue register and his initials on cheque book requisition slip . He has also issued cheque books to the 3rd party without permission from the competent authority .

Itwas submitted from the side of the management that the cheque books can be issued only against that account in which there is minimum balance of Rs . 500 and itwas the duty of the workman to check that balance . There was a balance of Rs . 100 in that account , so the cheque book was issued by the workman without properly verifying the real balance . The Officer , Shri Anil Kumar involved in this case was suspended . Hedid not also follow the prescribed norm .

The Enquiry Officer found proved that the cheque book has been issued without permission from the competent authority . The balance of the account was not verified at the time of issuing the cheque book and the workman did not put his initial on the cheque book requisition slip as well as cheque book issue register .

It was further submitted from the side of the workman that the workman has issued cheque book to an Officerworking in the same branch , it was minor misconduct whereas the workman has been given harsh punishment of reduction of scale by one increment. The charges are not mentioned in the suspension letter .

It is not necessary to mention every charge in suspension letter . Major charges are only mentioned . The workman has been issued chargesheet containing these 4 charges. Inquiry has been held on all the 4 charges . Charge No. 2 & 3 have been found proved by the Enquiry Officer as well as the Disciplinary Authority. The workman has cross - examined all the witnesses and he has been given sufficient opportunity to produce his own defence witness . Personal hearing has been given to him by the Disciplinary Authority as well as the Appellate Authority , so the management has followed the principles of natural 6607

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3 (ii) ]

Ithas been held in this case that in domestic inquiry evidence of a solitary witness is sufficient to hold the charges proved. It has been held in 2001 (89 ) FLR 427 as under:

" It is well settled that a conclusion or a finding of fact arrived at in a disciplinary inquiry can be interfered with by the court only when there is no material for the said conclusion; or that on the materials , the conclusion cannot be that of a reasonable man . "

justice in the conduct of inquiry and imposing the penalty . It has nowhere been stated in the claim that principles of natural justice so far as show-cause notice , service of chargesheet , opportunity of cross-examination and opportunity of 2nd show - cause notice has not been given . As such in the facts and circumstances of the case the management has given full opportunity to cross - examine the witnesses deposing against him and to give his own evidence . The principles of natural justice have been observed by the Enquiry Officer and the Disciplinary Authority and Appellate Authority.

From perusal of this judgment it becomes quite obvious that the Tribunal can interfere with the findings of the Enquiry Officer in case it is perverse . The Enquiry Officer has based his findings on oral as well as documentary evidence . It cannot be said that there is absolute absence of any evidence in support of the findings ofthe Enquiry Officer.

Itwas further submitted that the dispute has not been properly espoused. It transpires from perusal of the record thatthe General Secretary , PNB has raised the dispute before the Conciliation Officer . However , the workman has himself filed claim statement . There may be circumstances when , after espousal , the union is not willing to file claim statement in the Tribunal/ Court . In such circumstances the workman cannot be deprived of his valuable right of raising the dispute before the Tribunal/Court .

It has been held by the Hon'ble Supreme Court in 1961 (I ) LLJ 504 as under :

1 have perused the findings of the Enquiry Officer . The Enquiry Officer has analyzed the evidence in detail in giving his findings on all the charges . Even if charge Nos.1 , 3 and 4 are not found proved in the absence of the opportunity being afforded to the workman for producing the opinion of handwriting expert . There is no argument in respect of charge No. 2. It was only argued that charge No. 2 constitutes minor offence and so minor punishment should be inflicted.

"While it will be unwise and indeed impossible to try to lay down a general rule in the matter , the ordinary rule should in our opinion be that such representation by an Officer of the Trade Union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned . "

The workman has issued cheque book without verifying the balance . He has not put his signature on the requisition slip and cheque book issue register . The cheque books have been issued in respect of fictitious account. There is indeed opening of fictitious account and cheque book has been issued against that account to defraud the bank. The punishment is not harsh and shocking to conscience of the Court.

From the perusal of this judgment it becomes quite obvious that the Tribunal can permit other representations of the workman concerned in view of this case law and the workman has been permitted to file claim himself . So there is proper espousal of this case .

It was further submitted from the side of the management that 2 more inquiries have been held against the workman and he has been found guilty of negligence and misconduct . The other 2 inquiries are subsequentto the punishment awarded to the workman , so those inquiries are not relevant . However, prima faciedly those inquiries reflect the conduct of the workman. However , those inquiries are not relevant at this stage.

" In a domestic inquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply . All materials which are logically probative for a prudent mind are permissible . There is no allegory to hearsay evidence provided it has reasonable nexus and credibility . The departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act . "

It is settled law that Tribunal has no power to interfere with the punishment inflicted by the Disciplinary Authority in case charges are found proved and the punishment is not shocking to the conscience of the Court . Inthe instant case punishment inflicted on the workman is neither shocking to the conscience of the Court nor dis- proportionate . The inquiry conducted against the workman is valid . The punishment inflicted is also not harsh . No interference is required .

"The sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record . "

The reference is replied thus :--

It has been held in 1972 (25 ) FLR 45 as under:

The action of the management of Punjab National Bank (Sr. Regional Manager , Delhi Region ) ordering punishment of lowering down by one stage in the scale of Shri Ashok Kumar Sharma , Special Assistant is just and legal . The workman applicant is not entitledto get any relief as prayed for .

Award is given accordingly . Date: 06-08-2007 .

R. N. RAI , Presiding Officer "An industrial Tribunal would not be justified in characterizing the finding recorded in the domestic inquiry as perverse unless it can be shown that such a finding is not supported by any evidence , or is entirely opposed to the whole body of the evidence adduced before it . In a domestic inquiry once a conclusion is deduced from the evidence , it is not permissible to assail that conclusion even though it is possible for some other authority to arrive at a different conclusion on the same evidence .

3625 GI/07-7 6608

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929 [PART IH- SEC. 3 (ii) ] नई दिल्ली , 14 अगस्त, 2007

Dist . Hazaribagh is justified in superannuating the workman Shri Basudeo Bhagat w.e.f. 27-1-1993 without determining his age by the Age Determination Committee when it is claimed that his elderbrother Shri Jagdeo Bhagat will become due for superannuation on 21-6-2001 (date of birth being 21-6-1941 ) as determined by the Age Determination Committee of M/ s . Central Coalfields Ltd. ? If not, to what relief the workman is entitled ? "

का.आ. 2533.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सी सी एल के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय धनबाद 1 , के पंचाट ( संदर्भ संख्या 53/94 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल-20012/ 111/93- आई आर ( सी -1 ) ] स्नेह लता जवास , डेस्क अधिकारी

New Delhi , the 13th August , 2007

S.O. 2533. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 53/94) ofthe Central Government Industrial Tribunal - cum-Laour Court Dhanbad I , now as shown in the Annexure in the Industrial Dispute between the management of CCL and their workmen , which was received by the Central Government on 13-8-2007.

Afterhaving received the Order No. L-20012/111/93- IR(Coal- I )dt. 18-3-94 of the aforesaid reference from the Government of India, Ministry of Labour, New Delhi for adjudication of the dispute a reference case No. 53 of 1994 was registered an 29-3-94 and accordingly an order to that effect was passed to issue notice through the registered post to the parties concerned directing them to appear in the Court on the date fixed and file their written statement alongwith the relevant document and a list of witnesses in support of their claim . In compliance of the said order notices by the registered post were issued to the parties concerned . Sri D. K. Verma , Advocate and Sri S. Bose , Organizing Secretary of the union appeared in the Courtto represent the management and the union respectively.

[No. L-20012/111/93 - IR (C- I) ] SNEH LATA JAWAS, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO . I, DHANBAD

In the matter of a reference under section 10( 1 ) ( d) ( 24) of the Industrial Disputes Act , 1947

Reference No. 53 of 1994

Parties:-Employers in relation to the management of Piparwar Project of M/ s . C.C.L And

Their workman

Present: Shri Md. S. Khan , Presidingofficer

Appearances :--

Forthe Management :-Sri D. K. Verma , Advocate For the Workman ---Shri Shanjay Tana Bhagat S/o Late Basudeo Bhagat, workman concerned

Industry: Coal

State : Jharkhand . Dated, the 3rd August, 2007

AWARD

From the perusal of the order sheet of the record it transpires that both the parties have filed their written statements in support of their claim. It is further clear from the record that the case was fixed for adducing evidence of the workman concerned but today a petition alongwith three affidavits including Sri Sanjay Tana Bhagat himself, ChinoDevi w/o Lates Basudeo Bhagat and Sita Devi second wife of Late Basudeo Bhagat has been filed in the Court praying thereinto pass a NO DISPUT AWARD . The copy of the petition was served upon working Advocate for the management who has endorsed as " No Objection" . It is obvious from the record that Sri Sanjay Tana Bhagat applicant is the son of Late Basudeo Bhagat the concerned workman who had raised the Industrial Dispute at hand through union . It is also clear from the death certificate granted by the competent authority that Basudeo Bhagat the workman concerned died on 16-8-97 and this fact was informed by the petitioner to the union . The mother of the petitioner have also filed affidavit in this respect . The petitioner has mentioned in the application that he alongwith other members of the familydo not want to contest the case further any more since this reference is pending, they have not received the retiral benefit . In the prevailing facts and circumstances of the case it is not advisable to keep the record pending any more as they do not want to contest this Dispute . As such it is hereby :-

ORDERED

By order No. L - 20012/ 111 /93 - IR (Coal - I ) dated 18th March 1994 the Central Govemment in the Ministry of Labour has in exercise of the powers conferred by clause (d) of sub- section ( 1 ) and sub - section (2A) of Section 10 ofthe Industrial Disputes Act , 1947, referred the following dispute for adjudication to this Tribunal :-

SCHEDULE

That let a "NO DISPUTE AWARD be and the same is passed. Send the copies of the Award to the Government of India, Ministry of Labour & Employment , New Delhi for information and needful . Reference is accordingly disposed of.

"Whether the action of the management of Piparwar Project of M/s . Central Coalfields Ltd. P.O. Bachra,

MD . S. KHAN , Presiding Officer 6609

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II-खण्ड 3 ( ii ) ]

नई दिल्ली, 14 अगस्त, 2007

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. 263/2004 .

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

का.आ. 2534.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 263/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 14-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/460/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 14th August, 2007

"Whether the demand of the workman Shri V. A. Rajendran ,, wait list No. 440 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. 2534. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 263/ 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 14-8-2007 .

[No. L- 12012/460/ 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. 263/2004

[Principal Labour Court CGID No. 207/99]

[ In the matter of the dispute for adjudication under clause (d) ofsub -section ( 1 ) and sub - section 2(A) of Section10 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 V. A. Rajendran

AND

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

APPEARANCE

Forthe Petitioner

: Sri V. S. Ekambaram ,

Authorised Representative

: M/ s . K. Veeramani ,

For the Management

Advocates

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012 /460 /98 - IR (B - I ) dated 11-03-1999 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. 207/99 and issued notices to both parties . Both sides entered appearance and filed their Claim Statement and Counter Statement respectively.

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 Siruthozhil branch from 20-07-1982 . 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 Siruthozhil 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 20-07-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Anna Nagar West 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 6610

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[PART 11-SEC. 3 ( ii) ] 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 settlementby 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 Sections 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 .

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 licu 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) 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. 440 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 tum 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 440 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 were not questioned by any union so far and the settlements of bank level settlements and opcrated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act , 1981 does not applyto 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 .

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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 . 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act. As per recruitment rules 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 arc 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. 440for 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 issuedby 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 preposterousto 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 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 applics but forall cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the 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 of the relevant guidelines /circulars of the Respondent /Bank inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , 6612

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[PART 11-SEC. 3(ii) ] 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 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 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' 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 of which is marked as Ex . W8 . Further , the appointment of daily wage basis for regular messengerial jobs ete. 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 lix.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 asto 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 Ilon'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 attempttowriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It isfurther 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 ofabsorption . Therefore , it is violative of Articles 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 . 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 clause 2 (oo) 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 isstill in existence , the categorisation as such is not valid nd the provisions of Sastry Award are also violated .

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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 of the Respondent/ Bank and they are entitledto 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 onlywhen 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 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 .

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 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 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 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 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 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

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[PART II -SEC . 3( ii) ]

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 AIR2000 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 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 Number 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 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 .

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 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 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 helong 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 1 LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that settlements are divided into two categorics namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the 1.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ). A settlement of the first category has 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

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[ भाग II-खण्ड 3 ( ii ) ]

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 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 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 .

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 .

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 ofbottom 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 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 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 ;

3625G1/07-8 6616

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 ,1929

[PART 11-SEC. 3 ( ii) ]

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 ' 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 permanentby 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 .

(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 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 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 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 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 concent of retrenchment therefore , cannot be stretched to

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii ) ]

settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even 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 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.

19. But, I find since the Supreme Court has held that temporary employces are not entitledto 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 mcrit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner.

Point No. 2:

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

20. In view of my foregoing findings that the Petitioner is a temporary employce and he is not 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 claimed by him. No Costs .

21. Thus , the reference is answered accordingly.

(Dicated to the P.A. transferred 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 : -

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 todispute 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 questionedby the Petitioner.

For the Petitioner WW1 Sri V.A. Rajendran WW2 Sri V. S. Ekambaram

For the 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 .

17. 1 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 the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist. Further , the Petitioners have not questioned the 6618

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART 11-SEC. 3 (ii) ] Ex . No. Date

Ex. No. Date

Description

W2 20-04-88

W18 31-03-97 Xerox copy of the appointment order to Sri . G. Pandi .

Хегохx copyopy of the administrative guidelines issued by Respondent /Bank for implementation of Ex. M1 .

W19 Feb. 2005

W3 24-4-91

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

W20 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 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 .

W21 09-11-92

W5 20-08-91

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 .

W22 09-7-92

W6 15-03-97

Xerox copy of the Minutes of the Bipartite meeting.

W23 09-07-92

Xerox copy of the circular letter of Zonal Office, Chennai About filling up to vacancies of messenger 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 parttime general attendants .

W24 07-02-06

Xeros copy of the circular of Respondent/Bank to all Branches regarding indentification of massenger vacancies And filling thembefore 31-3-97.

W8 Nil

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

W25 31-12-85

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

W9 9-07-86 Xerax copy of the service certificate issued by Siruthozhil Branch.

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

W10 5-09-95

For the Respondent/Management :-

Xerox copy of the service certificate issued by Kodambakkam branch .

Ex. No. Date

Description

W11 Nil

M1 17-11-87 Xerox copy of the settlement.

M2 16-07-88 Xerox copy of the settlement.

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

27-10-88 Xerox copy of the settlement.

W12 Nil

M4 09-01-91 Xerox copy of the settlement .

M5 30-07-96 Xerox copy of the settlement .

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

M6 09-06-95

W13 06-03-97

Xerox copy of the minutes of conciliation proceedings .

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

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

W14 06--03-97

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

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

W15 06-03-97

10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

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

M10 Nil

Xerox copy of the wait list ofChennai Module.

W16 17-03-97 Xerox copy of the service particulars- J. Velmurugan.

M11 25-10-99

W17 26-03-97

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

Xerox copy of the letter advising selection ofpart time Menial-G . Pandi 6619

भारत का राजपत्र : सितम्बर 8, 2007/ भाद्र 17, 1929

[ भाग 11-खण्ड 3 (ii) ]

नई दिल्ली, 14 अगस्त, 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. 188/2004.

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

का,आ. 2535.-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 188/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 14-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/632/1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi, the 14th August, 2007

"Whether the demand of the workman Shri P. Arivazhagan, wait list No. 513 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so ,to what relief the said workman is entitled? "

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

S.O. 2535. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref . No. 188/ 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 14-8-2007 .

[No. L- 12012/632/ 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. 188/2004 [Principal Labour Court CGID No. 296/99]

(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 workmen)

BETWEEN

: 1 Party/Petitioner

Sri . P.Arivazhagan

AND

The Assistant General Manager , II Party/ Management State Bank of India , Region - I Trichirapalli .

APPEARANCE

: Sri V. S. Ekambaram ,

For the Petitioner

Authorised Representative

M/ s . K.S. Sundar ,

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 Nillikuppam branch from 29-03-1986 . 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 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 Nillikuppam 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 29-03-86 , the Petitioner hasbeenworking as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Nillikuppam 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- 12012/632/98 - IR (B- I ) dated 28-04-1999 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. 296/99 and issued notices to both parties . Both sides entered appearance and filed 6620

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929

[PART 11-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 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 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 partyto 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 arc repugnantto 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 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 for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section 18(1) and 18 (3 ) of 1.D. Act 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 positioneddown in seniority . Due to the business cxigency, the Respondent / Bank engaged the temporary employces 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 , 16-7-1988 , 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 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. 513 in wait list of Zonal Office Trichy . So far 212 wait listedtemporary candidates , out of 652 wait listed temporary employees were permanently appointed by Respondent/ Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave 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 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 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 , outof 652 wait listed candidates, 212 temporary employces werc 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 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 correctto 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 ofpermanent 6621

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

[भाग II-खण्ड 3 (ii ) ]

Point No. 1 :

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 ofwait 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 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 ) 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 . 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules 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. 513 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

[PART II-SEC . 3 (ii)] THE GAZETTE OF INDIA: SEPTEMBER 8 , 2007 /BHADRA 17, 1929

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 tothiswait 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 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 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 industry wise 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 ofConstitution of India . Therefore , the Petitioner contended that preparation of Ex.M 1 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 . MI 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 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 butfor 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.Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 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 pravides 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 , 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 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.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 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 ahout 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 6623

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II-खण्ड 3( ii) ]

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 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 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 1.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 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 40to50 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 are estopped from making claim as they had accepted the settlements drawn under the provisions of 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) 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 ofpermanent workmen is illegal ." Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joinedthe 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 orposting 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 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 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 onlywith regard to modification of Ex. MI 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 personal knowledge about the settlements which are marked

3625G1/07-9 6624

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC . 3(ii) ]

(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 ofthe 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 fairand 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 Number 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 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 .

Sections 18( 1 ) and 18(3) of the I.D. Act, in lieu of the provisions of law and implementedby 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 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 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 of11 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 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

[ भाग II-खण्ड 3( ii) ]

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 isto 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 LABIC 1664 VANSAGNATHAN ORIENT PAPER MILLS VS. INDUSTRTAL 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 of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . 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 .

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 of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy. " In that case , pruning of select list on reduction in 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 ofbottom 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 ofappointment 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 notto confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that 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 Suprerne 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 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 settlernent .

wherein the Supreme Court nas ineld at the direction that all those ad-hoc temporary employees who have continued for more than a year should be 6626

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929

[PART II-SEC. 3( ii) ]

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 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 1.D. Act retrenchment procedure following principle of ' last come- first go ' is not mandatorybut 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 bariking service , he has not established withany 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 moredays 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 .

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 upan 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 falfilling the qualifications, it cannotbe held that in each and every case , such a direction must follow irrespective of end 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 efLowes Courts .He further relied on the decision reported a1997 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 to decorating a stil born beov. Under these circumstances , there was no occasion to regularise them or to give then walid 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

onlydue to eies and they have not appointed against any regular vand they have only appointedin leave

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

3 (ii) ]

[ भाग II-खण्ड

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 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 abona 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.

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 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 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 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 himto be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

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 Courtprobably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as 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.Inviewofmy 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 pronouncedby me in the open court on this daythe 31st January, 2007) .

K. JAYARAMAN , Presiding Officer 16.Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitledto 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 ofthe 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.

6628

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

Witnesses Examined :-

[PART II-SEC . 3( ii) ] Ex. No. Date

For the Petitioner WW1 Sri P. Arivazhagan WW2 Sri V. S. Ekambaram Forthe Respondent

Description

W15 6-3-97 Xeroxcopy of the call letter from Madurai zonal office For interview of messenger post--J. Velmurugan .

W16 17-3-97

MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Xerox copy of the Service particulars- J.Velmurugan.

W17 26-3-97

Ex. No. Date

Description

W1 1-8-88 Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-4-88 Xerox copy of the administrative guidelines Issued by Respondent/Bank for implementation of Ex.M1 .

W3 24-4-91

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

W18 31-3-97 Xerox copy of the appointment order to 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 13-2-95 Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of wait list.

W21 9-11-92

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 ofthe advertisement in The Hindu on dailywages based on Ex. W4 .

W5 20-08-91

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

W22 9-7-92 Xerox copy ofthe minutes of the Bipartite meeting.

W23 9-7-92

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

W6 15-3-97 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 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.

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 .

W24 7-2-06 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

W9 Nil

Xerox copy of the Service particulars of Petitioner in Nellikuppam Branch .

W10 7-7-97

Description

M1 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 statement showing number of days the Petitioner worked in Nellikuppam Branch .

Xerox copy of the settlement .

M5

30-07-96

W11 Nil

Xerox copy of the settlement .

M6

09-06-95

Xerox copy of the minutes of conciliation proceedings .

M7

28-05-91

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 order in W.P. No. 7872/91 .

M8

15-05-98

W12 Nil Xerox copy ofthe Vol . III of Reference book on Staff matters upto 31-12-95.

W13 6-3-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V . Muralikannan .

W14 6-3-97 Xerox copy of the call letter from Madurai zonal office For interview of messenger post -K . Subburaj .

Xerox copy of the order in O. P. No. 2787/97 of High Court of Orissa. 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 Tricky Module .

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

6629

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii) ]

नई दिल्ली , 14 अगस्त, 2007

the dispute on its file as CGID No. 288/99 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. 187/2004.

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

का.आ. 2536. 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 187/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 14-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/571/1998 - आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी

"Whether the demand of the workman Shri M. Ramamurthy , wait list No. 335 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 14th August , 2007 S.O. 2536. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the award (Ref. No. 187/ 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 14-8-2007 .

[No. L- 12012/571/ 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. 187/2004. (Principal Labour Court CGID No. 288/99)

[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

Sri M. Ramamurthy

: I Party/Petitioner

AND

TheAssistant General Manager , : II Party/Management State Bank of India , Region - I Trichirapali.

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 Villupuram Main branch from 31-10-1984. The Petitioner was orally informed that hisservices 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 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 Killupuram Main 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 31-10-1984, the Petitioner has been working as a temporary messenger and sometime performing work in other branches also . While working on temporary basis in Chintaderipet 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- 12012/571 /98 - IR ( B - I) dated 26-4-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken 6630-

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SBC. 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 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 Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522( 4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait 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 .

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 1.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 positioneddown 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 and30-7-1996. 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. 335 in wait list ofZonal Office , Trichy. So far 212 wait listed temporary candidates , out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave 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 up to 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 of652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was wait listed at 335 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 applyto 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 6631 [ भाग II- खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

PointNo. 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 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 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 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 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 . 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 furtherprayed 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 vacanciesby the wait listedworkmen 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 falseto 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 :----

(1) "Whether the demand of the Petitioner in Wait List No. 335 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 : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3( ii)] 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 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.M 1 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 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 , 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 of waiting 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.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 , 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 attempttowriggle 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 . 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 thatpreparation of Ex. M 10 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. 7872/91directing 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 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 6633 भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

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 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 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 allthese 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 Tribunał 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 are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 (1 ) and 18(3 ) of the ID . Act, in lieu of the provisions of law and implemented by the Responder Bank and the claim ofthe Petitioners are not bonafide ana are made with ulterior motive. Further , they have concealed the material facts that the Potitioner was wait listed as por was used as a device to take them out of the principal clause 2 (oo) 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 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 SCC201 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 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 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 . 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 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 6634

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3( ii )]

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 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 fairand 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 Number 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.

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 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 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 vitiatedby 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 i be binding on all workmen of the establishment , even who belong to the minority union which had objected 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. " 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 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

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ 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 thePetitionerto 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 LABIC 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 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 objecı 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 , front 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 isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

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 décision has been taken to reduce the number ofvacancies 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 SCC584 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 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 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 ;

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SBC. 3 (ii) ]

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 .

(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 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 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 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 employces 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 .

LTD . AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore , isnot 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 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 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 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 ." 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 perwait 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 .

6637

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought aboutby the subsequentdecisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him. Therefore, I find this point against the Petitioner.

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary 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 10 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 M. Ramamurthy WW2 Sri V. S. Ekambaram For the Respondent : MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj 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 Хеrоx copy of the administrative guidelines issued by Respondent /Bank forimplementation of Ex. M1 ..

6638

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

Ex .No. Date

Description

W3 24-04-91

[PART II-SEC. 3( ii) ]

Ex. No. Date

Description

W21 17-03-97 Xerox copy of the service particular- J.Velmurugan.

W22 26-03-97

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 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 fillingthem 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 23-07-85 Xerox copy of the service certificate issued by VillupuramBranch.

W10 20-07-95 Xerox copy of the service certificate issued by Villupuram branch.

W11 21-07-95 Xerox copy of the service certificate issued by Villupuram branch .

W12 10-07-96 Xerox copy of the service certificate issued by Chintadripet branch .

W13 27-01-97 Xerox copy of the service certificate issued by Purasawakkam branch.

W14 02-05-97 Xerox copy of the service certificate issued by IFB , Chennai branch .

W15 08-11-97 Xerox copy of the service certificate issued by Chintadripet branch .

W16 Nil Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

Nil

W17

Xerox copy of the Vol . III , of Reference book on Staff matters up to 31-12-95.

W18 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan

W19 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W20 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J . Velmurugan.

Xerox copy of the letter advising selection of part time menialG. Pandi .

W23 31-3-97 Xerox copy of the appointment orderto Sri G. Pandi .

Feb. 2005

W24

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

W25 13-2-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W26 9-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W27 9-7-92 Xeroxcopy of the minutes of the bipartite meeting.

W28 9-7-92 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 .

W29 7-2-06 Xerox copy of the Local Head Office Circular circular about conversion of part time employees and redesignate them as general attendants .

W30 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

M1 17-11-87 Хегох copy of the settlement .

M2 16-07-88 Xerox copy of the settlement .

M3 27-10-88 Хегох copy of the settlement.

M4 09-01-91 Хегохx copy of the settlement .

M5 30-07-96 Хегох copy of the settlement .

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

M7 28-05-91 Хегох 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 in SLP No. 3082/99 .

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

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No.1893/99 .

6639 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3( ii) ]

नई दिल्ली, 14 अगस्त , 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. 279/2004 .

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

का.आ. 2537. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डियां 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 279/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 14-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/624/1998- आई आर( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी

"Whether the demand of the workman Shri S. P. Raj , wait list No. 365 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 ? " New Delhi , the 14th August, 2007

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

S.O. 2537. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 279/ 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 ofIndia and their workmen , received by the Central Government on 14-8-2007 .

[No. L- 12012/624/1992 - IR (B -I )] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. JAYARAMAN, Presiding Officer Industrial Dispute No. 279/2004

[Principal Labour Court CGID No. 292/99]

[In the matter of the dispute for adjudication under clause (d) of sub -section (1) and sub - section 2(A) of Section10 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 S. P. Raj

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative

: M/s .. S. Sundar ,

For the Management

Advocates

AWARD

The Petitioner was sponsored by Employment Exchange for the post ofsub 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 Raja Annamalai Puram branch from4-1-1984. 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 Raja Annamalai Puram 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 4--1-1984, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Thiruvanamiyu 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 regardto 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 1. The Central Government, Ministry of Labour , vide Order No. L - 12012/ 624 /98 - IR (B - I) dated 3-05-1999 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. 292/99 and issued notices to both parties . Both sides entered appearance and filed

3625 G1/07-11 6640

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3(ii) ] 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 hiın in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of Para 522 (4 ) of Sastry Award . Eventhough 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 ohserved the instructions regarding grant of increments , leave , medicał henefits 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 noth 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 praystogrant 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 Sections 18( 1 ) and 18(3) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bonafide 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, 16-07-88 , 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 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. 365 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 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 xtended 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 365 he was not appointed . The said settlements were bonafide 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 saythatdocuments and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner wasdischarging 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 6641 भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II-खण्ड 3( ii) ]

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.

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 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 concernedandwhile 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 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3) of the Act . As per recruitment rules 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. 365 for restoring the wait list of temporary messengers . In the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

Point No. 1:

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

and arc eligible to be reinstated . Learned represema ... the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S SATYAM AND OTHERS the Supreme Court has held thai Chapter V-A 6642

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC . 3(ii)] the I.D. Act providing for retrenchment is not enacted only forthe benefit ofthe workmen to whom Section 25F applies butfor 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 & 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 nessengerial 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 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 Responent/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, butitis 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 respectiver. 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, bu has not produced anydocument in support of the so called non- inclusion except his bald statement. Further , according to MWI wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement 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 attempttowriggle 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 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 ofabsorption. Therefore , it is violative of Articles 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/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 these things, it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attachedtothewait 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 clause 2(oo) ofthe I.D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though 6643

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[भाग II-खण्ड 3 (ii) ]

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 of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther 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 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 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 .

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 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 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 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 incase , 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 ) 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 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 days and more in a continuous period of 12 calendar 6644

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[PART II-SEC . 3(ii) )

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 ofyet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further , 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 Number 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 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.

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 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 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. " 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 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

भारत का राजपत्र : सितम्बर 8, 2007/भाद्र 17 , 1929

[ भाग II-खण्ड 3( ii) ]

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 IC1664 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 thatin 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 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 .

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 ofbottom 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 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 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 rnerit list has no indefeasible right to appointrnent 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 rnala 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 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 6646

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[PART 11 -SEC. 3 (ii))

the 1.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 -ervice , 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.

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 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 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 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 cxigencies 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 cemployees 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

[भाग II-खण्ड 3 ( ii ) ]

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.

question of confirmation of an 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 "itis 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 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 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 cconomy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

19. But , I find since the Supreme Court has held that temporary employees are not 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 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 , 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 .

Point No. 2:

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

20. In view of my foregoing findings that the Petitioner is a temporary employce and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work . I find the Petitioner is not entitled to any relief as claimed by him . No Costs.

21. Thus , the reference is answered accordingly. 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 scttlements 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 S. P. Raj WW2 Sri V. S. Ukambaram

For the Respondent MW ! Sri C. Mariappon MW2 Sri C. Ramalingam

Documents Marked :

Ex. No. Date

Description

W1 1-8-88 Xerox copy of the paper publication in daily Thanthi based on Ex . MI.

W2 20-4-88 Xerox copy of the administratives guidelines issued by Respondent Bank for implementation of Ex. MI.

W3 24-4-91 Xerox copy of the circular of Respondent / Bank to all Branches 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 the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist. 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 ofmala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I tind the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and

3625 GI/07-12 6648

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929

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

Ex. No. Date

Description

Feb. 2005

W19

regarding absorption of daily wagers in Messenger vacancies .

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

W4 1-5-91 Xerox copy of the advertisement in The Hindu on daily Wages based on Ex . W4. W20 13-2-95

W5 20-8-91

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

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

W21 9-11-92

W6 15-3-97

Xerox copy of the Head Officer circular No. 28 rgarding Norms for sanction of messenger staff.

W22 9-7-92

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

Xerox copy of the Minutes of the Bipartite meeting

25-3-97

W23 9-7-92

Xcros 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 settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of parttime general attendants .

Nil

W24 7-2-06

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

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

W9 31-8-84 Xerox copy of the service certificate issued by R. A. Puram Branch .

W25 31-12-85

W10 6-7-85 Xerox copy of the service certificate issued by Thiruvanmiyur branch.

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

W11 Nil

For the Respondent/Management :-

Ex . No. Date

Description

M1 17-11-87 Xerox copy of the settlement .

Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respodent/Bank regarding recruitment to subordinate cadre & service conditions.

M2 16-07-88 Xerox copy of the settlement.

W12 Nil

M3 27-10-88 Хегох copy of the settlement .

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

M4. 09-01-91 Xerox copy of the settlement.

W13 6-3-97

M5 30-07-96 Xerox copy of the settlement .

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

M6 09-06-95

W14 6-3-97

Xerox copy of the minutes of conciliation proceedings.

M7 28-05-91

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

Xerox copy of the order in W.P. No. 7872/91 .

W15 6-3-97

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

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

M9 10-07-99

W16 17-3-97

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

Xerox copy of the service particulars- J. Velmurugun .

M10 Nil

W17 26-3-97

Xerox copy of the wait list of Chennai Module.

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

M11 25-10-99

W18 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

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

6649 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii) ]

नई दिल्ली, 14 अगस्त , 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. 293/99 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. 280/2004.

का.आ. 2538, 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 280/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 14-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/627/1998- आई आर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi, the 14th August, 2007

"Whether the demand of the workman Shri P. Venkatesan , wait list No. 395 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. 2538. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 280/ 2004) ofthe Central Government Industrial Tribunal -cum- Laour 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 14-8-2007 .

[No. L- 12012/627/ 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 Industrial Dispute No. 280/2004 (Principal Labour Court CGID No. 293/99)

[In the 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 P. Venkatesan

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative

: M/ s . K. S. Sundar,

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 Ponneribranch from 23-2-1984 . 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. 542/87which 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 to join at the branch where he initially worked as a class IV employee. From 23-2-1984, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Siruthozhil branch , another advertisement by the Respondent /Bank was made regarding casual workers who were reported to be m 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 1. The Central Government, Ministry ofLabour , vide Order No. L- 12012/ 627 /98 - IR (B - I ) dated 3-5-1999 has 6650

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 (ii) ] 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 settlementby 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 theconciliation officer . Therefore, the Respondent's action innot 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 üst 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 sarici 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 benefit .

WIS 4. As against this , the Respondent in its Counter Staterent alleged that reference made by the Govt . for adjudication by this Tobunal itself is not maintainable . The Petities in continuous service . Hence , the quest's, fregu opcintiment absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner i estopped from making claim as per Claim Statemehe settlement drawn under provisions of Section 18and 18 ( 3 ) of 1.D Act in lieu ofprovisions of law, retrenchment and implemented by Respondent /Bank . The claim of the Petitioner is not b de made with ulteriormice . The Potitioner : Grial facts thanewis wait listed as ner in l and could not be absorbed as he was : seniority. Due to the business exigencent/ Bank engaged the temporary employees.ence of daties as messenger and such enga were prevating from the year 1970 onwards . Sush of those empices who are claiming pernianent absorption and Ruences wens espoused by State Bank of India Staff vin

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 . Interms thereof, the Petitioner was considered for permanent appointment as per his eligibility alongwith similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 395 in wait list ofZonal Office , Madurai . 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 extended upto31-3-1997 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 395 he was not appointed. The said settlements were bonafide 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 werenot 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 [ भाग II- खण्ड 3 ( ii) ]

6651

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

PointNo. 1 :

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 oftemporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence, for all these reasons , the Respondent prays to dismiss the claim with 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 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 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 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 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules 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. 395for 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 : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 (ii)] 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 ofretrenchment . 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 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 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.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 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 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 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 on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which aremarked 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 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 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 by the Respondent/Bankby combing equals with unequals . Itisfurther 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 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 anddistinct 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 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 , dateof 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 . Ml 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 6653 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

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 Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 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 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 to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

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 Sections 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 was used as a device to take them out of the principal clause 2 ( oo) 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.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 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 orpostingwithin the prescribed period, he will be deemed to have refused it and the narne 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 forthe averment of MW 1. 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 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 exarnined 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 6654

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[PART II-SEC. 3 ( ii)] length ofhis engagement and could not be absorbed as he 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 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 ofyet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fairand 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 Number 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.

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 1 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 in case of the

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

[ भाग II- खण्ड 3 ( ii) ]

the pleading and find out the exact nature of pleading of thePetitioner to find out the exact nature of dispute instead of refusing to answer the reference on 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 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, 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 nigh 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 .

name appears in the select list on the basis ofcompetitive 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 ofbottom 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 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 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 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 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) hewas not eligible and qualified for the post at the time 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

3625 Gl/ 07-13 6656

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[PART II-SEC . 3 ( ii) ]

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, 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 .

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 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 of Lower Courts . He further relied on the " decision reported in 1997 11 SCC 1 ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . "So far as the question of confirmation ofthese employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc 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 . 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 ,

[भाग II- 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 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 .

Supreme Court has held that " regularisation furthermore , isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further , inCDJ 2006 SC 395 MUNICIPAL 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 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 reliefthe 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 WW1 Sri P. Venkatesan 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 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 .

Forthe Respondent MW1 Sri C. Mariappan MW2 SriC . Ramalingam

Documents Marked : ----

Ex. No. Dato

Description

WI 1-8-88 Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation of Ex . M1 .

17. I find much force in the contention ofthe learned counsel the for 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 6658

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

Ex. No. Date

Description

W3 24-4-91 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 ofthe advertisement in The Hindu on daily Wages based on Ex. W4 .

W5 20-8-91 Xerox copy of the advertisement in The Hindu extending Period of qualifying service to daily wagers .

W6 15-3-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up to vacancies of messenger posts .

W7 25-3-97 Xeros copy of the circular of Respondent/ Bank to all Branches regarding indentification of massenger 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 7-12-94 Xerox copy of the service certificate issued by Ponneri Branch .

W10 16-9-95 Xerox copy of the service certificate issued by Oversseas branch .

W11 11-4-97 Xerox copy of the service certificate issued by Siruthozhil branch W12 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respodent/Bank regarding recruitment to subordinate cadre & service conditions .

W13 Nil Xerox copy of the Reference book on Staff matters Vo.1 III consolidated upto 31-12-95 .

W14 6-3-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V . Muralikannan.

W15 6-3-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W16 6-3-97 Xerox copy ofthecall letter from Madurai zonal office For interview of messenger post-J . Velmurugan .

W17 17-3-97 Xerox copy ofthe service particulars- J. Velmrurgun .

W18 26-3-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

[PART II-SEC. 3( ii) ] Ex. No. Date

Description

W19 31-3-97 Xerox copy of the appointment order to Sri G. Pandi .

W20 Feb.2005 Xerox copy of the pay slip of T. Sekar forthe month of February , 2005 wait list No. 395 ofMadurai Circle .

W21 13-2-95 Xerox copy of Madurai Module Circular letter about engaging temporary employees form the panel of wait list .

W22 9-11-92 Xerox copy of the Head Officer circular No. 28 rgarding Norms for sanction of messenger staff.

W23 9-7-92 Xerox copy of the Minutes of the Bipartitemeting.

W24 9-7-92 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.

W25 7-2-06 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 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 .

M3 27-10-88 Хегоx copy of the settlement .

M4 09-01-91 Xerox copy of the settlement .

Xerox 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 of High 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 Chennais Module.

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

6659

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II- खण्ड 3 (ii) ]

नई दिल्ली, 14 अगस्त, 2007

Ittranspires for perusal of the order sheet that several dates have been given for filing claim statement. The case is pending since 2005. The workman has failed to file claim statement till date .

No dispute award is given.

Date: 6-8-2007 R. N. RAI, Presiding Officer

नई दिल्ली , 14 अगस्त, 2007

का.आ. 2539.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सी. पी. डब्ल्यू डी. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , नं. 2 , नई दिल्ली के पंचाट ( संदर्भ संख्या 105/2005 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल -42012/65/2003- आई आर( सीएम- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 14th August, 2007

का.आ. 2540.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सी. पी . डब्ल्यू डी. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , नं. 2 , नई दिल्ली के पंचाट ( संदर्भ संख्या 127/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल-42012/ 160/2003- आई आर ( सीएम- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 14th August, 2007 S.O. 2539. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 105/ 2005) ofthe Central Government Industrial Tribunal-cum- Labour Court No. 2 , New Delhi as shown in the Annexure in the Industrial Dispute between the management of CPWD and their workmen , received by the Central Government on 13-8-2007 .

[No. L-42012/65 /2003 - IR ( CM- II) ] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

S.O. 2540. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 127/ 2004) of the Central Government Industrial Tribunal-cum- Labour Court No. 2, New Delhi as shown in the Annexure in the Industrial Dispute between the management of CPWD and their workmen , received by the Central Government on 13-8-2007 .

[No. L-42012/ 160/2003 - IR (CM- II) ] BEFORE THE PRESIDING OFFICER : CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT II NEW DELHI

AJAY KUMAR GAUR, Desk Officer I. D. No. 105/2005

Presiding Officer : R. N. Rai

ANNEXURE

IN THE MATTER OF :-

BEFORE THE PRESIDING OFFICER: CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT II NEW DELHI

I. D. No. 127/2004

Presiding Officer : R. N. Rai

Shri Jai Pal , C/o . The General Secretary, All India CPWD ( MRM ) Karamchari Sangathan , 4823 , Balbir Nagar Extension , Gali No. 13 , Shahadara , Delhi-110032.

IN THE MATTER OF:

Versus

TheExecutive Engineer , Elect . Division - II , CPWD, IARI , Pusa, New Delhi - 110012 .

AWARD

Shri Man Singh , C/ o . The President , All India CPWD ( MRM) Karamchari Sangathan ( Regd .) , 4823 , Balbir Nagar Extension , Gali No. 13 , Shahadra , Delhi- 110032 .

Versus

1. The Ministry of Labour by its letter No. L-42012/ 65/2003 - IR (CM - II ) Central Government dt . 29-8-2005 has referred the following point for adjudication .

The point runs as hereunder :-

1. The Director General of Works , CPWD, Nirman Bhawan, NewDelhi

2. The Executive Enginner , CPWD, J -Division , R. K. Puram, NewDelhi .

"Whether the demand of All India CPWD (MRM) Karamchari Sangathan for absorption and regularization of Shri Jai Pal in the establishment of CPWD is legal and justified ? If so , to what relief he is entitled?" 6660

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

AWARD

TheMinistry of Labour by its letter No. L- 42012/ 160/ 2003 - IR ( CM - 11 ) Central Government dt . 27-5-2005 has referred the following point for adjudication .

The point runs as hereunder :-

"Whether the contract between the management of CPWD and their contractor is sham? If so , the demand of theAll India CPWD ( MRM ) Karamchari Sangathan for reinstatement , regularization /absorption of the services of contract labour , namely Sh . Man Singhi , S/ o Sh . Hoshiar Singh , Enquiry Clerk is legal and justified? If yes ,to what relief the workman is entitled and from what date ? "

The workman has filed claimed for reinstatment on the ground of 240 days work with the management. He has not filed even any documentary evidence in support of his case .

The management in the written statement has denied the working of this workman. No document has heen filed by either of the parties .

[PART 11-SEC. 3 (ii)] New Delhi , the 14th August , 2007

S.O. 2541. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 39/ 2004) of the Central Government Industrial Tribunal - cum- Labour Court No. 2, New Delhi as shown in the Annexure in the Industrial Dispute between the management of Central Public Works Department and their workmen , receivedby the Central Government on 13-8-2007 .

[No. L-42012/97 /2003 - IR ( CM - II ) ] AJAY KUMAR GAUR, Desk Officer ANNEXURE

BEFORE THE PRESIDING OFFICER: CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT- II , NEW DELHI

I. D. No. 39/2004

Presiding Officer : R. N. Rai

PRESENT:

Sh . Brijesh Kumar

It transpires from perusal of the order sheet that reply was filed on 1-3-2007 and the workman was given opportunity to file rejoinder and affidavit to 5-4-2007, 3-5- 2007, 5-6-2007 , 28-6-2007 , 11-7-2007 and 1-8-2007 . He has not filed rejoinder and affidavit . In the absence of affidvit the claim statement cannot be deemed to be proved . The workman applicant is not entitled to get any relief.

The reference is replied thus : ---

The contract between the management of CPWD and their contractor is not sham . The demand of the All India CPWD ( MRM) Karamchari Sangathan for reinstatement, regularization /absorption of the services of contract labour , namely Sh. Man Singh , S /o . Sh . Hoshiar Singh , Enquiry Clerk is neither legal nor justified . The workman applicant is not entitled to get any relief as prayed for.

Award is given accordingly .

Date: 7-8-2007

R. N. RAI , Presiding Officer नई दिल्ली , 14 अगस्त, 2007

का.आ. 2541.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सी. पी. डब्ल्यू डी. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण, नं. 2 , नई दिल्ली के पंचाट ( संदर्भ संख्या 39/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 13-8-2007 को प्राप्त हुआ था ।

[सं. एल-42012/97/2003- आई आर ( सीएम- II ) ]

अजय कुमार गौड़ , डेस्क अधिकारी

-1stParty

Sh . Atul Bandhu

---2nd Party IN THE MATTER OF :

Shri Shyam Kumar, C/o. All India CPWD ( MRM) Karamchari Sangathan (Regd .), 4823, Balbir Nagar Extension , Gali No. 13 , Shahadra , Delhi- 110032.

Versus

The Executive Engineer , ED- IV , CPWD, 1. P. Bhawan , ITO New Delhi , NewDelhi

AWARD

The Ministry of Labour by its letter No. L- 42012/97 / 2003 - IR ( CM - II) Central Governmentdt . 25-2-2004 has referred the following point for adjudication .

The point runs as hereunder : -

"Whether the action of the management of Central Public Works Department, New Delhi in terminating the services of Shri Shyam Kumar , Ex . Motor Lorry Driver(Hand Receipt) w.e.f. 21-2-2000 as well as not regularizing his services from the date of his joining i.e. 20-10-1990 is just , fair and legal ? If not, to what relief the workman is entitled and from which date ?"

The workman applicant has filed statement of claim . Inthe statement of claim it has been stated that the workman Shri Shyam Kumar has been working as Motor Lorry Driver [ भाग II- खण्ड 3 ( ii) ]

under Parliament Works Division - 2 , CPWD , IP Bhawan, New Delhi w.e.f. 20-10-1990.

That the , workman had been hired by the manage- ment to drive Motor Lorry of the management for reward and is hence workman under the definition of Section 2 (s) of the ID Act, 1947 and had been performing his duties regularly w.e.f. 20-10-1990 to the full satisfaction of the management.

That the services of the workman were terminated w.e.f. 21-02-2000 without any compliance with any ofthe provisions of the ID Act , 1947 or other statutory provisions .

That the workman has worked for more than 240 days in each year and 12 months before the illegal termina- tion of his services .

That the workman had not been able to attend his dutiesw.e.f. 21-02-2000 due to his ill health, a fact which had been duly intimated to the Director Works (S & D) , CPWD , New Delhi in writing.

Thatthe workman on being declared fit for resuming his duty, presented himself alongwith the fitness certifi- cate and medical certificate of the period from 24-02-2000 to 04-04-2001 .

That when the workman on 09-04-2001 presented himself for duty the workman was not allowed tojoin duty on the ground that the application shall be dealt within the provisions of ID Act , 1947 .

Thatthe workman had neither been granted any leave nor paid the wages in lieu of leaves as he has been shown by the management as workman employed on Hand Receipt.

Thatunder the provisions of Section 2 (oo) of the I D Act, 1947 not allowing the workman to join duty will amount to termination of his services .

That no disciplinary action has been taken against the workman for any misconduct or any other reason what- soever . Neither had the workman been issued any notice during the period of his illness from the management .

That the workman has been in continuous service of the management as per the definition given in Section 25B and had been absent only on account of his illness .

That the Executive Engineer , Parliament Works Division -2 , CPWD vide letter No.54 ( MR)/2002-02/3882 dated 03-11-2001 directed the workman to submit the joining report with justification as per provisions ofthe ID Act, 1947.

That the workman submitted his representation as per the directions of the Executive Engineer , Parliament Works Division - 2 on 03-12-2001 .

That the management again vide letter No.63 ( 16 ) PWD 2/5008 dated 13-12-2001 directed the workman to submit his representation within 21 days for further action .

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भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

That the workman replied to the above letter on 21-12-2001 to management .

That the management in the proceeding before the Conciliation Officer had not denied that the workman is employed with them since 1990 but has instead asserted that he is working on hand receipt basis for the past 10 years which itself amounts to unfair labour practice under Schedule- 5, Entry 10 of the ID Act, 1947 which read as under:-

"To employ workmen as " badlis " , " casuals or tem- poraries and to continue them as such for years , with the object of depriving them of the status and privileges of permanent workmen" .

That the workman is entitled to be allowed to rein- statement with full back wages and all other consequent reliefs .

That the workman had been performing his duties w.e.f. 20-11-1990 and the services ofjunior workmen to the said workman have been regularized .

That prior to the illegal termination ofhis services on account of his illness , the workman has been performing hisduties continuously which is of a perennial nature and is incidental to the activities and mandatory duty of the CPWD.

That admittedly the management has employed another person to do the same duties which the workman Shri Shyam Kumar had hitherto been performing, which clearly shows that the duties performed by the workman Shri Shyam Kumar are of a perennial nature and incidental to the mandatory duties of the management .

That the claim of the workman is being espousedby the All India Central PWD ( MRM ) Karamchari Sangathan , 34 -D, Sector - 4 (DIZ) Area, Raja Bazar, New Delhi - 110001 , through its Office Bearers .

The management has filed written statement . In the written statement it has been stated that it is not denied that the dispute has been referred as submitted by the plaintiff. However, there had been no industrial employ- ment between the plaintiff and the respondent . The work- man was engaged as casual worker on hand receipt , whose existence was based on daily attendance and he did not hold lien against any post . Hence the question ofterminat- ing services of Shri Shyam Kumar , MLD on Hand Receipt w.e.f. 21-02-2000 as well as not regularizing his services from the date ofjoining i.e. 20-10-1990 does not arise . Shri Shyam Kumar , MLD left his assignment at his own choice w.e.f. 21-02-2000 .

That the applicant was engaged by CPWD manage- ment on daily rates on casual basis and was paid accord- ingly. A casual worker does not hold any lien on a post . Besides this the applicant himself quit w.e.f. 21-02-2000 and turned up only after a year . Thus engagement on the plea that he is not well and did not revert back either with status of his health or for continuity of his engagement except on 09-04-2002, when his endeavours were hindered 6662

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

by the respondents . The dispute with respect to claimant's effort to rejoin as casual worker arose on 09-04-2000 . The worker quit his engagement with the respondent of his own sweet choice on 21-02-2000 . The worker was there- fore, not in continuous engagement of the respondent for more than 240 days in the year and 12 months before the date of dispute . The dispute , therefore , does not qualify for redressal under Industrial Disputes .

The application was treated as a mere information of his non- availability , for which alternative arrangement was made as the workman did not hold lien against any post of the respondent . It is not disputed that the workman in- formed about his unlimited non - availability on account of illness on 03-4-2000 . It may be seen that the workman was under the treatment of Dr. Binod Choubey , B -51 , Vinod Nagar , Delhi - 110 092 who advised him rest w.e.f. 24-02-2000 to 15-02-2001 as per the certificate discharged by Dr. Binod Choubey on 15-02-2001 . In contrast to the medical advise , the workman quit the engagement with the respondent on 03-04-2000 against 24-02-2000 . The work- man did not produce any medical certificate on 03-04-2000 ner has been able to produce any medical prescription of Dr.Binod Choubey for the period 24-02-2000 to 15-02-2001 . The respondents approached Dr. Binod Choubey and requested him to provide following information vide let- ters No. (a) 63 ( 16)/ PaWDII / 511 dated 06-02-2002 (Hindi ) (Exhibit R-1 ) and (b) 63 (16 )/PaWD1I/ 1357 dated 24-04-2003 (Hindi) (Exhibit R - 2 ) .

The inforination sought was " as to why the work- man was not referred to any speciality hospital " . This in- formation was considered necessary in light of one stroke rest of 354 days having been certified by Dr. Binod Choubey without any supporting prescriptions and medi- cations. Accordingly not only the Annexure II but Annexure I are also under doubt and there is a need to investigate the two as a conspiracy against the respon- dent and the government .

In order to meet the ends ofjustice , it is submitted that the workman was involved in a maintenance suit with his wife. Reference is invited to Suit No. HMA No. 747/98 dated 7-12-1998 in the Court of Ms. Veena Birbal , ADJ ; Karkardooma Courts , Delhi . The proceedings of the case mat- ter are enclosed as Exhibit R- 3 . Attention is invited to pro- ceedings dated 17-2-2000 wherein the Ld . ADJ issued warrant ofattachment attaching 1/3rd salary of workman every month till satisfaction of decretal amount followed by proceedings dated 27-3-2000 wherein the Ld . ADJ was pleased to record the status of the workman as daily wager with he respon- dents . The workman was present in the said Court ofADJ both on 17-2-2000 and 27-3-2000 and did not dispute the findings of Ld . ADJ . Thereafter the workman avoided per- sonal appearances and defence before the Hon'ble Court in the referred HMA No.747/ 98 dated 7-12-1998 .

Now establishing a co - relation between absence from engagement with respondent and Court case and the motive of the workman is easy . Having come to know about the plausible attachment ( attachment orders were passed on 17-02-2000 ) , the workman went underground and

[PART II-SEC . 3 ( ii) ] employed sickness theory to ensure continuity of engagement with the respondent . Since his absence was actually provoked by Court attachment orders instead of actual illness , he failed to support it with either prescription or likely period of his rest/confinement on account of his alleged sickness . The proceedings in the case matter HMΑ 747/98 reveal that the premises of the workman who was the JD in the case matter were always found locked when- ever Court balif approached him . This indicates that the workman was not availing rest as has been allegedly ad- vised by Dr. Binod Choubey for the period 24-02-2000 to 15-02-2001 and was not only absconding from respondent's engagement but also from his home to avoid legal matters which also included attachment of his immovable property aswell in respect of HMA 747/98 . The workman surfaced after the settlement of the case No.HMA 747/98 . He is utilizing the certificate of Dr. Binod Choubey as a shield and is hiding the facts ofhis absence. Similarly Dr. Binod is not supporting his certificate with actual medical proceed- ings of the workman's treatment w.e.f. 24-02-2000 to 04-04-2001 . Accordingly the certificate issued by Dr. Binod Choubey , MBBS is in contravention to prescribed principles , norms and rules of Medical Council of India and is therefore, to be treated as null and void . The respon- dents therefore, pray that the reasons for absence from engagement with respondents as forwarded by the work- man on medical grounds be set aside and he treated as an act of cheating in conspiracy with Dr. Bnod choubey against the respondents .

The workman having been engaged on casual basis did not have any lien on the job and hence cannot demand work as a matter of right . Moreover without prejudice to the foregoing, it is submitted that the medical certificate submitted by the workman is false as brought out in Para- 6 above and does not disclose the nature of illness , the treatment advice nor the result of the treatment ' and the basis for the fitness certificate keeping in view the nature ofjob performed by the workman .

However , this cannot be a plea for his defence at this stage when he himself quit his engagement with the respondents on his own reasons . By quoting this ground in his support , the workman has cogently proved his motive of this matter . He is merely interested to some how get into government employment by cheating the respon- dent in conspiracy with Dr. Binod Choubey .

Thatthe workman was engaged on casual basis and hence the question of illegal termination on account of illness does not arise . The workman was not terminated , he himself quit his engagement . As already brought out in Para- 6 above, the workman quit engagment to avoid legal action under HMA 747/98 and is now seeking relief of his own action by painting the respondents as defaulter which is however far from truth .

The workman applicant has filed rejoinder . In the rejoinder he has reiterated the averments of his claim state- ment and has denied most of the paras of the written state- ment. The management has also denied most of the paras ofthe claim statement.

6663

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II- खण्ड 3 ( ii) ]

Evidence of both the parties has been taken.

Heard argument from both the sides and perused the papers on the record .

From the pleadings of the parties the following issues arise for adjudication :--

It was further submitted that the workman was involved in a Maintenance Suit with his wife . There was order of recovery of maintenance from Court of Ld . AD, thereafter the workman avoided personal appearance . Attachment orders were also passed against the workman on 17-2-2000 . The workman went underground and applied sickness theory to ensure continuity of engagement with the respondent.

1. Whether the workman has worked regularly as casual labour/hand receipt from 20-10-1990 to 20-2-2000 ?

2.Whether the workman is entitled to reinstatement ?

It was further submitted that the workman was not actually ill . He has submitted a false medical certificate, whereas he has not filed any prescription and medicines receipts.

3. To what amount of back wages the workman is entitled?

4. Relief if any ?

ISSUE NO. 1

Itwas submitted from the side of the workman that he has worked continuously from 20-10-1990 to 20-2-2000 MW1 in his cross - examination has admitted as under :-

It is true that the workman was involved in Maintenance Suit . The relevant documents have been filed regarding the same . However , the workman has applied for leave . He has worked for 10 years from 20-10-1990 to 20-02-2000 . In such circumstances it was necessary for the management to issue notice to the workman regarding absence but no notice to the workman has been issued .

"It is correct that Sh . Shyam Kumar has been working in the CPWD since 20-10-1990" .

The workman has filed certificate issued by the Executive Engineer. This certificate is detail of attendance. He has been shown to work from 1990-1999 .

In 2006 (4) Scale a direction has been given to regularize the workmen who have worked for more than 10 years subject to availability of the post . This workman has worked for 10 years , hence in view of the judgment of the Constitution Bench Judgment, the management should have considered his case for regularization . After working of 10 years a lien to the post is created and in view of the Constitution Bench Judgment referred to above it was the duty of the management to issue notice to the workman and if after notice the workman did not turn up , the management in its discretion may have terminated the services of the workman .

It was also submitted that the workman has been transferred from one division to another . The workman has filed letter dated 7-1-1997 . He has been transferred to Parliament Works Division - II by the Executive Engineer . These letters are photocopies but they have not been denied by the management so these letters are admissible in evidence .

It is also admitted to the management that the workman applied for leave according to leave rules on 3-4-2000. In that leave it has been mentioned that he could not attend duty from 21-2-2000 to 24-2-2000 due to illness . The leave application of the workman has not been rejected by the management .

In the instant case the workman has worked for 10 years . He absented thereafter. He has applied for leave as per leave rules but his application has not been considered. He may have presumed that leave to the workman has been granted as there is no inquiry from the side of the management.ment . He has worked for long 10 years . He has not received any retrenchment compensation. In case medical certificate submitted by the workman is found not genuine the management should have reinstated him considering him as leave without pay.

The workman has worked regularly from 20-10-1990 to 20-2-2000 . He has applied for leave as per leave rules . Theworkman has worked regularly from 20-10-2000 on the postof Driver . This issue is decided accordingly .

ISSUE NO . 2

The workman has worked for long 10 years . He has been transferred from one division to another . After 10 years of service the workman was entitled to notice but no notice has been sent to the workman .

The management has engaged another Driver at his place, so the work is of continuous and perennial nature . Temporaries and Badlis should not be engaged again and again for work of continuous and perennial nature .

Itwas submitted from the side of the management that the workman was engaged on casual basis and the casual labour does not hold any lien on the post . The workman absented w.e.f. 21-2-2000 and turned up only after a year . Thus , the workman himself left the work on 21-2-2000. The workman has not worked continuously for 240 days in a calendar month.

Ithas been held by the Hon'ble Supreme Court that in case a workman is engaged on muster roll basis it is necessary to issue him notice before expunging his name from the rolls . The workman is entitled to reinstatement . This issue is decided accordingly.

Itwas further submitted that when the workman absented , alternative arrangements were made as the workman did not hold any lien against any post of the respondent .

3625 G1/07-14 6664

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/ BHADRA 17, 1929

[PART II-SEC . 3 ( ii )] ISSUE NO . 3

डिवीजनल सैक्रेट्री , नेशनल यूनियन ऑफ आर.एम.एस. एण्ड एम.एम.एस. एम्पलाईज ग्रुप, 1805/1 , महबूब की कोठी के पीछे, क्रिशचयनगंज , अजमेर । प्रार्थी

बनाम

The workman has not established that he was really ill . HisMedical Certificate does not appear to be genuine . He was a temporary employee . The management has engaged another Driver at his place . In the facts and circumstances of the present case the workman is not entitled to any back wages . This issue is decided accordingly.

अप्रार्थी

पोस्ट मास्टर जनरल , दक्षिणी क्षेत्र , सावित्री स्कूल के सामने अशोक मार्ग , अजमेर ।

ISSUE NO . 4

उपस्थित

पीठासीन अधिकारी : श्री गौतम प्रकाश शर्मा , आर.एच.जे.एस. The workman is entitled to reinstatement w.e.f. 21-02-2000 without any back wages . The management should reinstate the workman w.e. f . 21-02-2000.

The reference is replied thus:

प्रार्थी की ओर से कोई उपस्थित नहीं अप्रार्थी की ओर से कोई उपस्थित नहीं

दिनांक अवार्ड 22-12-2006

आदेश

The action of the management of Central Public Works Department, New Delhi in terminating the services ofShri Shyam Kumar, Ex . Motor Lorry Driver (Hand Receipt) w.e.f. 21-02-2000 as well as not regularizing his services from the date of his joining i.e. 20-10-1990 is neither just nor fair nor legal . The management should reinstate the workmanw.e.f 21-02-2000 without back wages.

1. केन्द्र सरकार , श्रम मंत्रालय , नई दिल्ली द्वारा निम्न विवाद इस न्यायाधिकरण को अधिनिर्णय हेतु प्रेषित किया गया है :

The award is given accordingly .

Date:09-08-2007

R.N. RAI , Presiding Officer

नई दिल्ली, 16 अगस्त , 2007

"Whether the charter of demand as contained in Annex -A submitted by the National Union of R.M.S. and M. M. S. Employees from C/D/ED dated 10-2-95 is legal & justified? If so, to what relief the workman are entitled ?" का.आ. 2542.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार डाक विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय औद्योगिक अधिकरण , जयपुर के पंचाट को प्रकाशित करती है , जो केन्द्रीय सरकार को 16-8-2007 को प्राप्त हुआ था ।

[सं. एल-40011/13/96- आई आर (डी.यू. ) ] सुरेन्द्र सिंह, डेस्क अधिकारी

New Delhi , the 16th August , 2007

S.O. 2542. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award of the Central Industrial Tribunal , Jaipur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of D/o Post and their workman , which was received by the Central Government on 16-8-2007 .

2. रैफरेंस प्राप्त होने के पश्चात् दर्ज रजिस्टर किया गया और प्रार्थी यूनियन को नोटिस भेजे गए कि वे अपना स्टेटमैंट ऑफ क्लेम पेश करें । किन्तु प्रार्थी यूनियन की ओर से आज तक कोई उपस्थित नहीं आया न ही कोई क्लेम पेश किया गया । पत्रावली पर यूनियन को भेजे गये अंतिम नोटिस की तामील रसीद भी संलग्न है किन्तु बावजूद तामील कोई उपस्थित नहीं आया है । ऐसा प्रकट होता है कि यूनियन इस प्रकरण में रूचि नहीं ले रही है। वैसे भी यूनियन का दायित्व है कि विवाद जो उठाया गया है , उसके संबंध में अपना स्टेटमैंट ऑफ डिमाण्ड पेश करे तथा साक्ष्य से उसे साबित कराये किन्तु यूनियन ने अपने दायित्व का निर्वहन नहीं किया है । आज भी कोई उपस्थित नहीं आया है । न्याय हित में वर्ष 1998 के प्रकरण में क्लेम हेतु अवसर दिया जा रहा है अब और अवसर दिया जाना न्यायोचित नहीं है , अतः यूनियन का क्लेम पेश करने का हक बंद किया जाता है । चूंकि यूनियन ने विवाद के संबंध में कोई क्लेम व साक्ष्य पेश नहीं की है अतः यूनियन किसी राहत की अधिकारी नहीं है और प्रकरण में निम्न अवार्ड पारित किया जाता है :

[No. L-40011 / 13 /96 - IR (DU)] SURENDRA SINGH , Desk Officer

" नेशनल यूनियन ऑफ आर.एम.एस एवं एम.एम.एस. का मांग पत्र दिनांक 10-2-95 उचित एवं वैध नहीं है । अतः श्रमिकगण कोई अनुतोष प्राप्त करने के अधिकारी नहीं हैं । "

अनुबंध

केन्द्रीय औद्योगिक न्यायाधिकरण , जयपुर

केस नं. सी.आई.टी. 17/1998

3. अवार्ड आज दिनांक 22-12-2006 को खुले न्यायालय में लिखाया जाकर सुनाया गया जो केन्द्र सरकार को प्रकाशनार्थ नियमानुसार भेजा जावे ।

रैफरेंस : केन्द्र सरकार , श्रम मंत्रालय , नई दिल्ली का आदेश क्र. एल. 40011/13/96/आई. आर. ( डी.यू. ) दिनांक 2-3-98

गौतम प्रकाश शर्मा , न्यायाधीश 6665 भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

[भाग II- खण्ड 3 (ii) ]

नई दिल्ली, 16 अगस्त , 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. 180/2004.

follows: 2. The Schedule mentioned in that order is as का.आ. 2543. 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 180/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 16-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/561/ 1998- आईआर( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 16th August , 2007

"Whether the demand of the workman Shri R. Gopalan , wait list No. 541 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. 2543. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 180/ 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 16-8-2007.

[No. L- 12012/ 561 / 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. 180/2004 (Principal Labour Court CGID No. 279/99)

(In the matter ofthe 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

: 1 Party/Petitioner

Sri . R. Gopalan

AND

The Assistant General Manager , Il Party/ Management State Bank of India , Region - I Tiruchirapalli .

APPEARANCE

: Sri V. S. Ekambaram ,

For the Petitioner

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 Karur branch from 3-4-1985 . 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 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 of the Karur 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 3-4-1985 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Tiruchirapalli 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 /561 /98 - IR ( B - I ) dated 26-04-1999 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. 279/99 and issued notices 6666

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929

[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 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 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 Sections 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 ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The waitlist 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 17-11-1987, 16-7-1988, 7-10-1988 , 9-1-1991 and30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3) of 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. 541 in wait list ofZonal Office , Trichy . So far 212 wait listed temporary candidates , out of 652 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 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 thewait 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 of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 541 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 Statusto Workmen) Act , 1981 doesnot applyto 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govemment for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question ofregular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim 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 implemented by Respondent/ Bank. The claim of the Petitioner is not bonafide 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 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 6667

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 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 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.

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 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 ) 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 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) oftheAct 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 :-

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/ BHADRA 17 , 1929

[PART 11- SEC . 3 ( ii) ] appointment as Sections 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 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 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 of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future withthe settlements . Further , Clause 1 of Ex . MI deals with categorization of retrenched temporary employees into ' A , B and C ' , but this categorization of A, B & C' is quite opposed to the doctrine of ' last come first go' or ' first come last go ' and therefore , the categorization 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 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 inore 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 prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was

not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non - inclusion except his bald statement. Further , according to 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 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 werepaid 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 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 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 MWI wait list under Ex.M10 comparises of both messengerial and non- messengerial candidates .While the temporary employees were appointed after due process of selection and were paid wages on the basis of industry wise 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 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 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 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 6669

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii) ]

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 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 of the 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 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 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 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 40to50 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 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 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 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 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 . 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 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, 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 regardto modification of Ex. MI 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 [PART II-SEC . 3 ( ii) ] 6670

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929

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 ofthe 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 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 matte ofyet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further , 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 Numbers 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 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 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 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 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 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 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 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 ninority 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 6671

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[ भाग II- खण्ड 3 (ii) ]

isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

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 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 the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but thatdoes 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 alt 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 ofreference is not happiły 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 .

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 of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy. " In that case, pruning of select list on reduction in 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 ofbottom 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 ofthe 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 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 validły entered into betweenthe Respondent/ Bank and Federation and since it

3625 Gl/07-15 6672

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929

[PART II-SEC. 3 ( ii)]

contended that these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR 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 1.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 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 .

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 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 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 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

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made 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 abona 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.

tobe 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, hewould not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , ifthe 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 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 foilow 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 Courthas 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 theGovernment in the wake ofprevailing market economy, globalisation , privatisation and outsourcing is evident, in viewofthe settled legal position , as noticed hereinbefore . "

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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore, I find this point against thePetitioner .

Point No. 2 :

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

20. Inviewofmy 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 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 6674

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Witnesses Examined:

Forthe Petitioner WWI Sri R. Gopalan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

WI 1-8-88 Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx. M1.

W3 24-4-91 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 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 15-3-97 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 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 do messengerial work.

W9 11-7-85 Xerox copy of the service certificate issued by Karur Branch.

W10 27-10-92 Xerox copy of the service certificate issued by Tiruchirapalli Branch.

W11 1-9-93 Xerox copy of the service certificate issued by Tiruchirapalli Branch.

W12 4-10-94 Xerox copy of the service certificate issued by Tiruchirapalli Branch.

W13 11-10-95 Xerox copy of the service certificate issued by Tiruchirapalli Branch.

W14 22-10-92 Xerox copy of the service certificate issued by Tiruchirapalli Branch .

W15 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre& service conditions .

W16 Nil Xerox copy of the Vol . III of Reference book on Staffmatters upto 31-12-95 .

W17 6-3-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan

[PART II-SEC . 3 ( ii) ] Ex. No. Date

Description

W18 6-3-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K . Subburaj W19 6-3-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J. Velmurugan

W20 17-3-97 Xerox copy of the Service particulars- J. Velmurugan

W21 26-3-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi W22 31-3-97 Xerox copy of the appointment order to SriG. Pandi

W23 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle

W24 13-2-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list W25 9-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W26 9-7-92 Xerox copy of the minutes ofthe Bipartite meeting.

W27 9-7-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms creation ofpart time general attendants .

W28 7-2-06 Xerox copy of the Local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W29 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

M1 17-11-87 Хегох copy of the settlement.

M2 16-07-88 Xerox copy of the settlement .

M3 27-10-88 Xerox copy of the settlement .

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 ofOrissa.

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.

25-10-99

M11

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

6675

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[ भाग II- खण्ड 3 ( ii) ]

नई दिल्ली , 16 अगस्त, 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. 195/2004 .

follows: 2. The Schedule mentioned in that order is as का.आ. 2544. 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 195/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 16-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/639/1998 - आईआर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 16th August , 2007

"Whether the demand of the workman Shri P. V. Thangaraju , wait list No. 361 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. 2544. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 195/ 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 16-8-2007 .

[No. L- 12012/639 /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. 195/2004 (Principal Labour Court CGID No. 303/99)

(In the matter ofthe 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

: 1 Party/Petitioner

Sri . V. Thangaraju

AND

The Assistant General Manager , 11 Party/Management State Bank of India , Region - I Trichirapalli .

APPEARANCE

Forthe 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 Vangal branch from 11-01-1983 . 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 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 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 Vangal 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 11-01-83 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Vangal 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 regardto his non- 1. The Central Government Ministry of Labour, vide Order No. L- 12012/639/ 98 - IR (B - I ) dated 28-04-1999 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. 303/99 and issued notices 6676

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[PART II-SEC . 3 ( ii) ] 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/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 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 Sections 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 him to work under assumed name or by both which amounts to unfair labour practice . The waitlist 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 for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service. Hence , the question ofregular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and ! 8 (3 ) of 1.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 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; 16-7-1988,7-10-1988 , 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. 361 in waitlist ofZonal Office , Thrichy . So far 212 wait listed temporary candidates , out of652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . ThePetitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having 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 waitlist and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were 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 of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 361 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 , 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 doesnot 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 [ भाग II- खण्ड 3 (ii) ]

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

thereupon as temporary messenger is justified?"

(ii) "To what reliefthe Petitioner is entitled?"

Point No. 1 :

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 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 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 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 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 , 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) ofthe 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 :

[PART II-SEC. 3 (ii )] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929

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 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 attemptto 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 industry wise 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 . 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 periodfrom 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 . 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 of the Petitioner that though 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 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 theI.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 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 of the settlements on absorption and which are statutory in character. Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 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 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 inessengers , 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 Staffmatters , 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 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 . 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 MW1 has spoken about the 6679 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

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 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 of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther contended on behalf ofthe Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the 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 madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and 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 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 . 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 ) 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 ofappointment 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 Respondent/Bank has produced Ex . M6 which alleged to be a copy ofminutes 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 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

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[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

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 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 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 ofyet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fairand reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it isbinding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the 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 Number 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 Governmenst 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 .

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 bonafide and aremade 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 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 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 froin 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 1 LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme

[भाग II- खण्ड 3 ( ii) ]

isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM 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 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 the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but thatdoes 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 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 .

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 of cornpetitive examination acquires a right of appointment in Government service in an existing or a future vacancy . " In that case , pruning of select list on reduction in 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 ofbottom 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 ofthe 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 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 nerit 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- fidemotive . 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 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 6682

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[PART II-SEC. 3( ii) ]

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 leaye vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on therulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that "they aretemporary 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) 754wherein 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 madepermanent 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 .

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; (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 humb 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 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 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 , 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

15. Learned Senior Advocate further argued that even inrecent decision reported in 2006 4 SCC 1 Secretary , State of Karnataka Vs. Uma Devi , the Supreme Court has held thatmerelybecause 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 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 6683

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[भाग II- खण्ड 3 ( ii) ]

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 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 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 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.

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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against the Petitioner .

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, 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 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 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 of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ."

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and 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 , correctedand pronounced by me in the open court on this day the 31st January, 2007 ) .

K. JAYARAMAN, Presiding Officer 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation 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 preparedby 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 6684

THE GAZETTE OF INDIA: SEPTEMBER 8 , 2007/BHADRA 17, 1929

Witnesses Examined:

[PART II -SEC . 3 (ii) ]

Ex. No. Date

For the Petitioner

Description

W15 6-3-97

WWI Sri V. Thangaraju WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj Documents Marked :-

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

17-3-97

W16

Xerox copy of the Service particulars- J. Velmurugan

W17 26-3-97

Ex. No. Date

Description

W1 1-8-88

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

W18 31-3-97

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

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx . M1 .

W3 24-4-91

Xerox copy of the appointment order to Sri G. Pandi

Feb. 2005

W19

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

W20 13-2-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list

W21 9-11-92

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 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 15-3-97 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 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 15-11-88 Xerox copy of the Service certificate issued by Karur Branch .

12-10-97

W10

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

W22 9-7-92 Xerox copy ofthe minutes of the Bipartite meeting.

9-7-92

W23

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

W24 7-2-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

31-12-85

W25

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

For the Respondent/Management : ---

Ex. No. Date

Description

M1 17-11-87 Xerox copy of the settlement .

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement.

M3

27-10-88

Xerox copy of the service certificate issued by Karur Siruthozhil Branch.

W11 Nil

Xerox copy of the settlement .

09-01-91

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Хегох copy ofthe minutes ofconciliation proceedings.

28-05-91

M7

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 order in W.P. No. 7872/91 .

15-05-98

M8

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

6-3-97

W13

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

W14 6-3-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj Xerox copy of the order in O. P. No. 2787/97 of High Court ofOrissa.

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 Trichy Module .

25-10-99

M11

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

6685

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[भाग II- खण्ड 3 ( ii) ]

नई दिल्ली , 16 अगस्त, 2007

thedispute on its file as CGID No. 277/99 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. 178/2004.

का.आ. 2545, 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 178/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 16-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/559/1998 - आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 16th August , 2007

"Whether the demand of the workman Shri R. Dhakshinamoorthy, wait list No. 450 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. 2545. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 178/ 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 Govemment on 16-8-2007 .

[No. L- 12012/559 / 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. 178/2004

[Principal Labour Court CGID No.277 /99 ]

(Inthe matter of the dispute for adjudiation 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

: I Party/Petitioner

Sri R. Dhakshinamoorthy

AND

The Assistant General Manager , : II Party/ Management State Bank of India , Region - I , Trichirapalli .

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 Sripuranthan branch from 27-04-1987 . 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 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 Sripuranthan 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 27-04-87, the Petitioner has been working as a temporary messenger and some timesperforming work in other branches also . While working on temporary basis in Sripuranthan 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 I. The Central Government Ministry ofLabour , vide Order No. L- 12012/559/98 - IR (B -I ) dated 26-04-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken 6686

[PART II SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

1-4-97 . Hence , the Petitioner raised a dispute with regardto 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 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 innot absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Eventhough 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 10work 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 togrant reliefof regular employment in Respondent/ Bank with all attendant benefits .

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 ) 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. 450 in waitlist of Zonal Office, Trichys . So far 212 wait listed temporary candidates , out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 450 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 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 ofprovisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bonafide 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 [ भाग 11- खण्ड 3 ( ii) ]

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 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 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 ofthe 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 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 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 :--

(1) "Whether the demand of the Petitioner in Wait List No. 450 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?" 3625 Gl/07-17

6687

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

Point 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 interviewand 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 ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concemed 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 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 .

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

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 , 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 attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of 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 of Ex. M 10 namely wait list is not inconformity with the instructions of Ex . M2 and non -preparation ofseparate panels amounts to violation of circular. Secondly, it has not beenprepared 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 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 . 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 thewait 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 ofthe principal clause 2 (oo) of the I.D. Act, 1947.

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 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.MI 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 of Ex . MI deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & C ' is quite opposed to the doctrine of ' last come--first go ' or ' first come last go ' and therefore , the categorization 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 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.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 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 6689 भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

[ भाग II- खण्ड 3 ( ii) ]

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 of the 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 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 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 to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances, this Tribunal has to pass an award in their favour .

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 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 length ofhis engagement and could not be absorbed as he 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 employworkmen 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 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 forthe averment ofMW1 . 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 claimed by the Respondent/Bank which says onlywith 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 itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's 6690

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929

[PART II-SEC . 3( ii) ]

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 bonafide in nature or that it has been arrived at on account offraud, misrepresentation or concealment offacts or even corruption and other inducements, it could be subject- matter ofyet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached *with the help ofthe 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 Number 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 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 .

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 heworked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said 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 fromthe joband 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 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 unionfrom scuttling the settlement . " It further held that "there may be exceptional cases, where there may be allegations ofmala 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 furtherrelied on the rulings reported in 1997 I LLJ 308 К.С.Р. 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 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

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

[भाग II- खण्ड 3 ( ii ) ]

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 hås 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 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 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, 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 .

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.

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 ofbottom 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 SCC584 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 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 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. PIARASINGH 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 a back door; (c) he was not eligible and qualified for the post 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 6692

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[PART II-SEC. 3 ( ii) ]

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 readyto 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 inrecentdecision reported in 2006 4 SCC I SECRETARY , STATE OF KARNATAKA VS. UMA DEVI , the Supreme Courthas 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 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 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 , in CDJ 2006 SC 443 NATIONAL FERTILIZERS 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 uponby 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 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 , 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 . 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 1.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 , 6693

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii) ]

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 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 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 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 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 31st January, 2007. )

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 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 .

WWI Sri R. Dakshinamoorthy WW2 Sri V. S. Ekambaram

For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

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 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. Ml .

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

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 .

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 messnger 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.

W8 Nil Xerox copy of the instructions in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

W9 09-10-87 Xerox copy of the service certificate issued by Sripuranthan Branch .

W10 09-10-97 Xerox copy of the service certificate issued by Sripuranthan Branch .

05-05-95

W11

Xerox copy of the service certificate issued by Sripuranthan Branch .

W12 Nil

Xerox copy of the service certificate issued by Sripuranthan Branch .

W13 Nil Xerox copy of the service certificate issued by Sripuranthan Branch.

W14 6-95 to 12-96

Xerox copy of the service certificate issued by Sripuranthan Branch. 10-01-97

W15

Xerox copy of the service certificate issued by Sripuranthan Branch .

22-05-97

W16

Xerox copy of the service certificate issued by Tiruchirapalli Branch .

09-10-97

W17

Xerox copy of the service certificate issued by Sripuranthan Branch .

09-10-97

W18

Xerox copy of the service certificate issued by Sripuranthan Branch .

W19 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W20 Nil Xerox copy of the Vol . III of Reference book on Staffmatters upto 31-12-95 .

06-03-97

W21

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

06-03-97

W22

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

[PART II-SEC . 3 (ii) ] Ex. No. Date

Description

W23 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J . Velmurugan .

W24 17-03-97 Xerox copy of the service particulars- J. Velmurugan.

W25 26-03-97 Xerox copy of the letter advising selection ofpart time Menial---G. Pandi .

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 of February, 2005 wait list No. 395 ofMadurai Circle .

W28 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

09-11-92

W29

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

W30 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W31 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 .

07-02-06

W32

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

W33 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

For theRespondent/Management : -

Ex.No. Date

Description.

M1 17-11-87 Xerox copy of the settlement.

Xerox copy of the settlement .

16-7-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

9-01-91

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xerox copy ofthe minutes of conciliation proceedings.

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa.

M9 10-7-99 Xerox copy of the order ofSupreme Court in SLP No. 3082/99 .

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

25-10-99

M11

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

6695 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II- खण्ड 3 ( ii) ]

नई दिल्ली, 16 अगस्त, 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. 179/2004 .

follows: 2. The Schedule mentioned in that order is as का.आ. 2546.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 179/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 16-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/560/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 16th August, 2007

"Whether the demand of the workman Shri . M. Paneerselvam , wait list No. 398 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. 2546. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 179/ 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 16-8-2007.

[No. L- 12012/560/ 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. 179/2004 (Principal Labour Court CGID No. 278/99 )

[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 ]

BETWEEN

Sri . M. Paneerselvam

: I Party/Petitioner

AND

The Assistant General Manager , II Party/Management State Bank of India, Region - I Trichirapalli.

APPEARANCE

For the Petitioner

M/s . K.S. Sundar,

: Sri V. S. Ekambaram , Authorised Representative :

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 Kulithalai branch from July, 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 Kulithalai 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 July , 84, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Musiri 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 .

1. The Central Government , Ministry of Labour , vide Order No. L- 12012 /560/98 - IR (B - I ) dated 28-04-1999 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. 278/99 and issued notices

3625 Gl/07-18 1

6696

THE GAZETTE OF INDIA : SEPTLIBER 8 , 2007/BHADRA 17 , 1929

[PART II- SEC . 3 ( ii )] 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 /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 Sections 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 him to work under assumed name or by both which amounts to unfair labour practice. The waitlist 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 , the question ofregular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18(3 ) of 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 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 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 , 16-7-1988 , 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 ) 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. 398 in wait list ofZonal Office, Rrichy . So far 212 wait listed temporary candidates , out of 652 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 , sannot 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) thetemporary 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 waitlist and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were 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 , outof652 wait listed candidates , 212 temporary employees wereappointed and since the Petitioner was wait listed at 398 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 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 6697

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

[ भाग II- खण्ड 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 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 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 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) 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 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules 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 :

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 ( ii )] 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 ofretrenchment . 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 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 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' 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 , 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 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 itismentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which aremarked 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 , 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 to wriggle out the illegality committed or perpetrated bythe 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 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 industry wise 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 oftemporary employees in the matter ofabsorption . Therefore , it is violative of Articles 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 . 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.M10beforethis 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 6699

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[ 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 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 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 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 40to50 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 are estopped from making claim as they had 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) 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 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 incase, 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 documentary evidence in support of the averment and also forthe averment of MW 1. 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 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 onlywith regard to modification of Ex . MI 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 6700

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[PART 11-SEC. 3 (ii ) ]

two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the 1.D. Act and ( ii ) those arrived at in the course of conciliation proceedings under Section 18(3 ) . A settlement of the first category has 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 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 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 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 fairand 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 contendedthat though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number 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 .

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 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 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 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 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 1 LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II- खण्ड 3 ( ii ) ]

Bank, I find the Petitioner is not entitled to question the settlement .

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 theorder ofreference, 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 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 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 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 .

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 of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy . " In that case, pruning of select list on reduction in 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 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 ofthe 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 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 IC2168 STATE OF HARYANA

AND ORS . Vs. PIARA SINGH AND OTHERS wherein 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/ 6702

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[PART 11- SEC. 3 ( ii) ] the Supreme Court has held that " now coming to the 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 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 t 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 .

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 givenwithout 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 ofservice 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 humb 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 iinpugned 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 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 to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give thein valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity . " Therefore ,

learned counsel for the Respondent contended that these

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 thatmerely 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 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 6703

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[भाग II- खण्ड 3( ii) ]

such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention ofthe learned counsel for the Respondent . Though in the Claim Staternent, the Petitioners have made so many allegations with regard topreparation 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 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 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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent' Bank as alleged by him . Therefore , I find this point against the Petitioner.

permanently. By doing so , it will be creating another mode ofpublicappointment 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 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 ofconfirmation of an employee upon the expiry ofpurported period ofprobation would not arise . " Further , inCDJ 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 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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ."

Point No. 2 :

The next point to be decided in this case is to what reliefthe 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 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

3625 Gl/07-19 6704

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II-SBC. 3( ii) ] Witnesses Examined:

Ex. No. Date

Description

For the Petitioner

W17 6-03-97

WW1 Sri M. Paneerselvam WW2 Sri V. S. Ekambaram

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

For the Respondent

W18 17-03-97

MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Xerox copy of the service particulars- J.Velmurugan

Ex. No. Date

W19 26-03-97

Description

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

W1 1-8-88

W20 31-03-97

Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

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

W2 20-4-88

W21 Feb.2005

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

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

W3 24-4-91

W22 13-02-95 Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of wait list.

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

W23 9-11-92

W4 1-5-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

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

W5 20-08-91

W24 9-07-92 Xerox copy of the minutes of the Bipartite meeting

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

W25 9-07-92

W6 15-3-97 Хегоx 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.

W26 7-02-06

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

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

W8 Nil

W27 31-12-85

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

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

W9 Nil

For the Respondent/Management:-

Xerox copy of the Service certificate issued by Kulithalai Branch .

Ex. No. Date

Description

W10 8-12-92

M1 17-11-87 Хегохx copy of the settlement.

Xerox copy of the service certificte issued by Ramalinga Nagar Branch.

M2 16-07-88 Xerox copy of the settlement .

W11 7-02-94

M3 27-10-88 Хегоx copy of the settlement .

Xerox copy of service certificate issued by Tennur branch .

M4 9-01-91 Xerox copy of the settlement .

W12 27-11-97

Xerox copy of the service certificate issued by Musiri branch.

30-07-96 Xerox copy of the settlement .

W13 Nil

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings .

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

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

M8 15-05-98

W14 Nil

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

Xerox copy of the Vol . III of Reference book on Staff matters upto 31-12-95.

10-07-99

W15 6-3-97

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

M10 Nil

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

Xerox copy of the wait list of Trichy Module.

W16 6-3-97

M11 25-10-99

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

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

6705 भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

नई दिल्ली , 17 अगस्त, 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. 41/2004.

follows: 2. The Schedule mentioned in that order is as का.आ. 2547.-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 41/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/581 / 1998 - आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 17th August , 2007

"Whether the demand of the workman Shri S.Gunaseelan, wait list No. 267 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. 2547. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 41/ 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 17-8-2007 ..

[No. L- 12012/581 / 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. 41/2004 (Principal Labour Court CGID No. 339/99)

(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 workmen)

BETWEEN

Sri . S. Gunaseelan

IParty/Petitioner

AND

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

APPEARANCE

Forthe 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 Udagamandalam branch from 10-11-80. 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 Fetitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Udagamandalam 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 10-11-80, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Udagamandalam 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 ofLabour, vide Order No. L- 12012/581 /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 thedispute on its file as CGID No. 339/99 and issued notices to both parties . Both sides entered appearance and filed 6706

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929 [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 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 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 of days worked by him after interview donot merit consideration. The Petitioner was not a partyto 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 & 25Hofthe 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 beenregularising 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 bypayment ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The waitlist 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 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 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 thetemporary 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, 16-7-1988 , 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. 501 in wait list ofZonal Office, Coimbatore So far 211 wait listed 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. 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 toother 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 waitlist 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 implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no reguíar 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 of705 wait listed candidates, 211 temporary employees were appointed and since the Petitioner was wait listed at 501 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 [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 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 .

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 listedworkmen with ulterior motive . The Respondent/Banl 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 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 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 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 maybe passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 267 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? "

6707

भारत का राजपत्र: सितम्बर 8 , 2007/भाद्र 17, 1929

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 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 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 : SEPTEMBER 8 , 2007/BHADRA 17 , 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 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 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 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) 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 , 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 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 on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 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 onlywhen 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 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.

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 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 inaccordance 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 anydocument 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 ofthe Respondent/Bank is afbitrary , 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 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

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929 [PART II SEC . 3 ( ii) ]

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 atby 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 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 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 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 workman with wait list Number 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 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, KOLLAMwherein 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 bonafide and aremade 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 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 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 heldthat " 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.

[ भाग II- खण्ड 3 ( ii ) ]

6711

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the 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 gotpower 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, butthatdoes 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 beenheld 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 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 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 .

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.

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 of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy ." Inthat 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 in1997 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 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 ofthe date namely 31-3-1997, the Petitioner cannotplead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied onthe 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 3625Gl /07-20 6712

[PART II-SEC . 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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. Fürther , he relied onthe 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 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 begiven to the Petitioner and , therefore , the claim is to be dismissed with costs.

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 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 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 of confirmation of these employees whose entry itself was illegai 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 . "

[भाग II- खण्ड 3 ( ii) ]

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 the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard topreparation of wait 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 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.

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 Court probably having regard to the changes in the policy decisions of the Govemment 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.

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 ofpublicappointment 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 hot 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 rocess 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 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. 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 Vis . 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 Government 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?

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.

(Dictatedto 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 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 6714

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

Witnesses Examined :

For the Petitioner WW1 Sri S. Gunaseelan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan

Documents Marked:-

Ex .No. Date

Description

WI 1-8-88 Xerox copy of the paper publication in daily Thanthi based on Ex .MI .

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation ofEx .M1 .

W3 24-4-91 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 advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-8-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-3-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-3-97 Хегоx 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 instructions in Reference book on staff about casuals not to be engaged at office/ branches to do messengerial work .

W9 6-2-81 Xerox copy of the notice issued by Udagamandalam Branch .

W10 18-5-85 Xerox copy of the service certificte issued by Bitherkad 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 Vol . III of Reference book on Staff maters upto 31-12-95.

W13 6-3-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V . Muralikannan .

W14 6-3-97 Xerox copy of the call letter from Madurai zonal office for interview of messengar post-K. Subburaj .

W15 6-3-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J . Velmurugan .

[PART II-SEC. 3 ( ii ) ]

Ex. No. Date

Description

W16 17-3-97 Xerox copy of the particulars- J.Velmurugan.

W17 26-3-97 Xerox copy of the letter advising selection of part time Menial-G. Pandi .

W18 31-3-97 Xerox copy of the appointment order to Sri G. Pandi.

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February , 2005 wait list No. 395 ofMadurai Circle .

W20 13-02-95 Xerox copy of the Madurai Module Circular letter bout Engaging temporary employees from the panel of wait list .

W21 9-11-92 Xerox copy of the Head Office circular No. 28 regardig Norms for sanction of messenger staff.

W22 9-7-92 Xerox copy ofthe minutes of the Bipartite meeting.

W23 9-7-92 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 .

W24 7-2-6 Xerox copy of the local Head Office circular about Conversion of part item 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.

FortheRespondent/Management :-

Ex. No. Date

Description

MI 17-11-87 Xerox copy of the settlement .

M2 16-7-88 Xerox copy of the settlement.

M3 27-10-88 Xeгox copy of the settlement.

M4 9-1-91 Xerox copy of the settlement .

M5 30-7-96 Xerox 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 15-5-98 Хегоx copy of the order in O. P. No. 2787/97 of High Court of Orissa.

M9 10-7-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99.

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

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

6715 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

नई दिल्ली , 17 अगस्त, 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. 141/2004..

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

का.आ. 2548. 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 विषाद में केन्द्रीय सरकार औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 141/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/419/ 1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 17th August, 2007

"Whether the demand of the workman Shri M. Kamaraj , wait list No. 251 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 arebriefly as follows :

S.O. 2548. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 141/ 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 17-8-2007 .

[No. L-12012/419/1998- 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 IndustrialDispute No. 141/2004

[Principal Labour Court CGID No. 139/99]

(Inthematter 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

IParty/Petitioner

Sri M. Kamaraj

AND

TheAssistant General Manager , II Party/Management StateBank of India, Region -I , Trichirapalli.

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative .

: M/ s . K. S. Sundar , Advocate

Forthe Management

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/ 419/98 - IR (B -I) dated 11-02-1999 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. 139/99 and issued notices

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 Kattur ADB branch from 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 takenup 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 considerationonce 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 Kattur ADB 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 the year 1987, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Trichy Z.O. 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 1-4-97. Hence , the Petitioner raised a dispute with regard to his non- employment . Since the conciliation 6716

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudicationby this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the questionof 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

17-11-1987 , 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 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. 251 in wait list ofZonal Office , Trichy. So far 212 wait listed temporary candidates , out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 251 , 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 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 [ भाग II- खण्ड 3 (ii ) ]

6717

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

PointNo. 1:

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 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 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 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 toprotect 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 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 furtherprayed 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 listedworkmen 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of theAct and not under Section 18( 3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of theRespondent/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 :-

(1) "Whether the demand of the Petitioner in Wait List No. 251 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 : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II SBC . 3(ii)] 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 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.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 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 , 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 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 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 , accordingto MW1 wait list under Ex.M10 was prepared on 2-5-92 but

thereis nopleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in itsorder 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 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 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 industry-wise settlement, it is not so in the case of casuals. Therefore , both belongs to two different and distinc categories . But , Ex. M3 provides for the same norms to the casuals as in thecase of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 01 Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M10 namely wait list is not inconformity withtheinstructions 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 theCourt 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. 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 producedthewait list Ex . M10 before this Tribunal marking itas 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 outoftheprincipal clause 2 (00 ) of the I.D. Act , 1947 .

6719 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र. 17 , 1929

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 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 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 to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass anaward in their favour .

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 Såstry 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.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 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 ) 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 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 . 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 ofRespondent/Bank has no application to the Petitioner's

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 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 length of his engagement and could not be absorbed as he 3625 GI/07-21 6720

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II- SEC . 3 ( ii) ]

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 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will ofthe parties and is a pointer to there being goodwillbetween 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 Governmentmay referfor 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 Number 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/ 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 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 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 ofmala 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 1.D. Act and ( ii) those arrived at in the course of conciliation proceedings under section 18 (3 ) . A settlement of the first category has 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

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

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 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 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.

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 betweenthe 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.

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 6SCC 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 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; (c) he was not eligible and qualified for the post 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 is whether a candidate whose name appears [PART. II-SEC. 3 ( ii) ] 6722

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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 .

atthe 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 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 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 I 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 ifsuch 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 onthe 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 .

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii) ]

not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has beenarrived 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 onlytemporary 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 .

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 withoutfollowing the rules , the same being a nullity , the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further , inCDJ 2006 SC 395 MUNICIPAL 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 . Anyrecruitment 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 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 ."

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 240days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled toclaim 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, correctedand pronounced by me in the open court on this day the 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 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.

K. JAYARAMAN , Presiding Officer

Witnesses Examined ;-

For the Petitioner WWI Sri M. Kamaraj WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj 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 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 6724

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

Documents Marked :-

Ex. No. Date

Description

WI 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 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 massenger 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 do messengerial work .

W9 16-02-88 Xerox copy of the service certificate issued by Kattur ADB Branch .

W10 15-02-93 Xerox copy of the service certificate issued by Kattur ADB Branch .

10-09-93

W11

Xerox copy of the service certificate issued by Tiruchirapalli Z.O. Branch .

15-03-95

W12

Xerox copy of the service certificate issued by Lalgudi Branch .

W13 27-07-95 Xerox copy of the service certificate issued by Kattur ADB Branch.

W14 19-12-96 Xerox copy of the service certificate issued by Kattur ADB Branch 10-08-97

W15

Xerox copy of the service certificate issued by Trichy Z.O. Branch .

W16 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care & service conditions .

W17 Nil Xerox copy of the Vol . III of Reference book on Staff maters upto 31/12/95 .

W18 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

W19 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

[PART II-SEC . 3( ii) ] Ex. No. Date

Description

W20 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan. 17-03-97

W21

Xerox copy of the service particulars- J.Velmurugan.

W22 26-03-97 Xerox copy of the letter advising selection of part time Minial-G. Pandi .

W23 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W24 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W25 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W26 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sariction of messenger staff.

W27 09-07-92 Xerox copy of the minutes of the Bipartite meeting."

09-07-92

W28

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 .

W29 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W30 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

FortheRespondent/Management :-

Ex. No. Date

Description

MI 17-11-87 Xerox copy of the settlement .

Хегоx copy of the settlement .

16-7-88

M3 27-10-88 Xerox copy of the settlement .

9-01-91 M4

Xerox copy of the settlement .

Xerox copy of the settlement. 30-07-96

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings .

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

M8 15-5-98 Хегох copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-7-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list of Trichy Module.

25-10-99

M11

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

6725

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II- खण्ड 3 ( ii) ]

नई दिल्ली, 17 अगस्त, 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. 48/2004.

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

का.आ. 2549.-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 48/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/370/1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 17th August, 2007

"Whether the demand of the workman Shri M. Baluchamy , wait list No. 273 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 arebriefly as follows:

S.O. 2549. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref . No. 48/ 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 17-8-2007.

[No. L- 12012/370/ 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. 48/2004

[Principal Labour Court CGID No. 64/99]

(Inthe matterof the dispute for adjudiation under clause( d) of sub - section ( 1 ) and sub- section 2 (A) of Section10 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. Baluchamy

AND

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

APPEARANCES

For the Petitioner

: Sri V. S. Ekambaram ,

Authorised Representative.

For the Management : M/s . R. Krishnamachari ,

Advocate

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/370/98 - 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. 64/99 and issued notices

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 Periyakulam branch from 19-12-1983 . 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 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 Pariyakulam 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 19-12-1983 , the Petitioner has been working as a temporary messenger and sometime performing work in other branches also . While working on temporary basis in Theni 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 1-4-97. Hence, the Petitioner raised a dispute with regard to 6726

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

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 Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award . Eventhough 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 .

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 settlementdrawn under provisions of Sections 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 positioneddown 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) 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. 273 in wait list ofZonalOffice, 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 , 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 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 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 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 273 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 [ भाग II-खण्ड 3 ( ii) ]

6727

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

PointNo. 1 :

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. 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 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 concernedandwhile 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 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 tofal 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules 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 theRespondent/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 :-

(1) "Whether the demand of the Petitioner in Wait List No. 273 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 : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II SEC. 3( ii) ] 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 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.Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 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 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 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 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.M 10 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 , 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 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 to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . Itisfurther 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 of absorption. Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore, the Petitioner corntended that preparation ofEx. M 10 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 beenprepared 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 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.M 10 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. 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 itas 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 ) of the I.D. Act, 1947 .

[ भाग II- खण्ड 3 ( ii ) ]

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther 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 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 40to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , thisTribunal has to pass an award in their favour ,

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.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 ) 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 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/ 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 ofEx . 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 personal knowledge about the settlements which are marked as Ex . MI to M5. Above all, though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 ( ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and ifthere 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 itis 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 Number 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 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 .

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 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 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 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 ofmala 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 К.С.Р. 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 andbinds 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

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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 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 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 .

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 .

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 ofbottom 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 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 besaidthat 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 whereinthe 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. Thedirection 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 6732

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[PART II-SBC. 3(ii) ]

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' 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 isto be dismissed with costs .

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 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 in1997 II SCC I 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 régularisation 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 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 ,

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 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 casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as allegedby him. Therefore , I find this point against the Petitioner .

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, inCDJ 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 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 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?

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 relie is 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 daythe31st January , 2007.)

K. JAYARAMAN, Presiding Officer

Witnesses Examined:-

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 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.

For the Petitioner WWI Sri M. Baluchamy WW2 Sri V. S. Ekambaram

For the Respondent MWI Sri C. Mariappan MW2 Sri M. Perumal

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 issued by Respondent/Bank forimplementation ofEx.MI .

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THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 (ii ) ) Ex. No. Date

Ex . No. Date

Description

W3 24-04-91

W20 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 circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W21 13-02-95

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 of wait list .

W5 20-08-91

W22 09-11-92

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

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

W6 15-03-97

W23 09-07-92

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

Xerox copy of the minutes of the Bipartite meeting.

W7 25-03-97

W24 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 settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

W8 Nil

W25 07-02-06

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

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

W9 07-09-91 Xerox copy of the service certificate issued by Periyakulam Branch.

W26 31-12-85

W10 07-09-01

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

Xerox copy of the service certificate issued by Periyakulam Branch .

For the Respondent/Management : ----

W11 20-05-95 Xerox copy of the service certificate issued by Theni Branch .

Ex. No. Date

Description

W12 Nil

MI 17-11-87 Xerox copy of the settlement.

M2 16-7-88 Xerox copy of the settlement .

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

M3 27-10-88 Xerox copy of the settlement .

W13 Nil

M4 9-01-91 Xerox copy of the settlement ..

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

M5 30-07-96 Xerox copy of the settlement .

W14 06-03-97

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings .

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

W15 06-03-97

28-5-91 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 15-5-98

W16 06-03-97

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

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

10-7-99 Xerox copy of the order of Supreme Court inSLP No. 3082/99 .

W17 17-03-97 Xerox copy of the service particulars- J.Velmurugan .

M10 Nil

Xerox copy of the wait list of Coimbatore Module.

W18 26-03-97 Xerox copy of the letter advising selection of part time Menial-G. Pandi .

M11 25-10-99

W19 31-03-97 Xerox copy of the appointment order to Sri G. Pandi.

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 , 17 अगस्त, 2007

का.आ. 2550.-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 पंचाटं ( संदर्भ संख्या 49/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/375/1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 17th August, 2007

S.O. 2550.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 49/ 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 17-8-2007 .

[No. L- 12012/375/ 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.49/2004 (Principal Labour Court CGID No. 65/99) (In the 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 . M. Thiruvettai

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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. 65/99 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. 49/2004.

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

"Whether the demand of the workman Shri M. Thiruvettai , wait list No. 347 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

TheAssistant General Manager , : II Party/Management StateBank of India, Z.O. Madurai .

APPEARANCE

ForthePetitioner

:Sri V. S. Ekambaram, Authorised Representative For the Management : M/s. R. Krishnamachari , Advocate

AWARD

1. The Central Government , Ministry of Labour , vide OrderNo. L- 12012/375/98 - IR (B - I ) dated 05-02-1999 has 3625 GI/07-23

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 Usilampatti branch from 02-06-1980. 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 Usilampatti 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 02-06-80 , the Petitioner has been working as a temporary messenger and some timesperforming work in other branches also . While working on temporary basis in Arasaradi 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 6736

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[PART II-SEC . 3( ii )] 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 1-4-1997. Hence , the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Government 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 ofno 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 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 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 . TheRespondent/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 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 .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question 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 implemented by Respondent/Bank. The claim of the Petitioneris 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 positioneddown 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 , 16-7-1988,7-10-1988 , 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. 347 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 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 extended up to 31-3-1997 for filling up vacancies which wereto ariseupto 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 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was waitlisted at 347 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 [ भाग II- खण्ड 3 ( ii) ]

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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

Point No. 1:

no jurisdiction to entertain such plea. It is not correct to say thatdocuments 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 filledup 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 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 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 toprotect 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 .

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 therewere 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 ( 3 ) of the Act. As per recruitment rules 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. Evenin 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. 347 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

.9 . On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees 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, have invoked the relevant provisions of Chapter the I.D. Act and it is preposterous to contend the ne 6738

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC . 3 ( ii) ]

こ 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 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.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 . MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of'A, B & 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 , 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 givenmore 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 I 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 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

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 MW 1 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 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 ofMWI 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 of MW1 wait list under Ex . M10 comparises of both messengerial and non- messengerial candidates While the temporary employees were appointed afterdue process of selection and were paid wages on the basis of industry wise settlement, it is not so in the case of casuals. Therefore, both belongs to 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 thatpreparation 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 ofconciliation 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 [ भाग II- खण्ड 3 ( ii ) ]

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 competed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitledto the benefits under the provisions of I.D. Act . It isfurther 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 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 to50years 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 anaward in their favour .

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 (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 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 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 ac'ed 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 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

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II-SEC . 3 ( ii) ]

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 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 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the 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 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 fairand 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 Number 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 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 .

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 length of his engagenent 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 EmploymentExchange 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 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 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 willbebinding 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

12. But, as against this on behalf of the Petitioner it is [ भाग II- खण्ड 3 ( ii ) ]

6741

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

not? But, I find that the settlement was validly entered into betweenthe 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 .

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 tha: " 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 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 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 expectedto 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 .

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 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 Government service in anexisting 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 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 malafide 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- fidemotive . 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 6742

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC . 3 ( ii) )

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 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 , 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 , 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 .

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 whereinthe 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 humb 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 IISCC 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 to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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. 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 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 beenarrived 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..

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 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 notbe entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due 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 questionof confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further, inCDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itis 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 policy decisions of theGovernment in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ."

19. But , I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled toclaim regularisation or reinstatement in the Respondent/ Bank as alleged by him. Therefore , I find this point against the Petitioner .

Point No. 2:

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 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 .

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 notbeen 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

3625 Gl /07-24 6744

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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. Thiruvettai WW2 Sri V. S. Ekambaram For the Respondent : MW1 Sri C. Mariappan MW2 Sri M. Perimal Documents Marked:-

Ex. No. Date

Description

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

W2 20-4-88 Хегоx copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex .M1 .

W3 24-4-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 1-05-91 Хегох copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

W5 20-08-91 Хегох copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-3-97 Хегох copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-3-97 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 do messengerial work .

W9 22-08-88 Хегох copy of the service certification issued by Usilampatti branch .

W10 24-11-95 Xerox copy of the service certificte issued by Valandur branch .

10-11-97

W11

Xerox copy of the service certificte issued byUsilampatti branch.

W12 13-11-97 Xerox copy of service certfication issued by Arasaradi 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 Staffmatters . Vol . III consolidated upto 31-12-95.

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of messenger post-V. Muralikannan .

[PART II-SEC. 3 ( ii )] Ex . No. Date

Description

W16 06-03-97 Xerox copy of call letter from Madurai zonal office for interview of messengar post-K. Subburaj .

W17 06-03-97 Xerox copy of the call letter from Maduria zonal office for interview of messenger post-J. Velmurugan.

W18 17-03-97 Xerox copy of the service particulars- J.Velmurugan .

W19 26-03-97 Xerox copy of the letter advising selectionof part time Menial-G . Pandi .

W20 31-03-97 Xerox copy of theAppointment ordr to SriG.Pandi .

W21 Feb. 2005 Xerox copy of the Pay slip of T. Sekar for the month ofFebruary , 2005 wait list No. 395 ofMadurai Circle.

W22 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W23 09-11-92 Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messenger staff.

W24 09-07-92 Xerox copy of the minutes of the Bipartite meeting .

W25 09-07-92 Xerox copy of thesettlement between Responent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

W26 07-02-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesigrnate them as general attendants .

W27 31-12-85 Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate -cadre.

Ex. No. Date

For theRespondent/Management :--- Description

M1 17-11-87 Хегох copy of the settlement .

M2 16-07-88 Хегох copy of the settlement .

27-10-88 M3

Хегох copy of the settlement .

09-01-91 M4

Хегоx copy of the settlement .

30-07-96 M5

Хегоx copy of the settlement .

09-06-95 M6

Xerox copy of the minutes of conciliation proceedings .

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

M8 15-05-98 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 .

Nil

M10

Xerox copy of the wait list of Trichy Module .

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

6745 [ भाग II-खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

नई दिल्ली , 17 अगस्त, 2007

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. 43/2004.

follows: 2. The Schedule mentioned in that order is as का.आ. 2551 , औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार , स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण/ श्रम न्यायालय, चेत्रई के पंचाट ( संदर्भ संख्या 43/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012 /301/1998- आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

" Whether the demand of the workman Shri P. Kottaiyan , wait list No. 257 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 arebriefly as follows :---

New Delhi , the 17th August, 2007 S.O. 2551. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 43/ 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 17-8-2007.

[No. L- 12012/301/1998 - 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. 43/2004 (Principal Labour Court CGID No. 19/2004)

[ In the matter ofthe dispute for adjudication under clause(d) of sub - section (1) and sub- section 2(A) of Section 10 of the Industrial DisputesAct, 1947 ( 14 of 1947), between the Management of State Bank of India and their workmen ]

BETWEEN

Sri. P. Kottaiyan

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative : M/s. D. Mukundan ,

For the Management

Advocates

AWARD

The Central Government , Ministry of Labour , vide OrderNo. L- 12012/301 /98 - IR (B- I ) dated 01-02-1993 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. 19/99 and issued notices to

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 Vembattur branch from 07-10-1982. The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before SupremeCourt 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 Vembattur 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 07-10-82, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Sivagangai 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 anymore and he need not attend the office from 1-4-1997. Hence, the Petitioner raised a dispute with regard his non -employment . Since the conciliation ended in fel art 6746

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17 , 1929

[PART II-SEC . 3 ( ii) ] 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/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 Sections 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 relevanı 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 waitlist 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 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 settlementdrawn under provisions of Sections 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 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, 16-7-1988 , 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. 257 in wait list ofZonal Office, Madurai . So far 219 wait listed temporary candidates , out of 492 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 serviceand 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 waitlist and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were 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 of492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 257 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 [ भाग II- खण्ड 3 ( ii) ]

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

(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 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, theRespondent 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 toprotect 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 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act. As per recruitment rules 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 :

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 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 & 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 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 timeto 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 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 hisfuture with the settlements . Further , Clause 1 of Ex . MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come-first go'or ' first come last go ' and therefore , the categorization 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 , 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 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 on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex .MI , M3 and M4 respectively . But, when MWI has spoken about the settlements , he deposed that

settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according 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 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 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 . Itisfurther 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 due -processof selection and were paid wages on the basis of industry wise settlement, it is not so in the case of casuals . Therefore , both belongs to 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 of Constitution of India . Therefore , the Petitioner contendedthat 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 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 attachedto 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 [ भाग II- खण्ड 3 ( ii ) ]

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 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 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to thebenefits 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 daysin 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 thosedays 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 producedby 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 and they are in age group of 40to50 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 anaward in their favour .

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 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 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 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, 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 in W.P. No.7872/91 ceased to have any relevance when the main writ has been disposed of inthe 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

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17,1929

[PART II-SEC. 3 (ii ) ]

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 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 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 fairand 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 workman with wait list Number 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 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 .

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 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 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 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 whereinthe 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

भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II- खण्ड 3( ii) ]

Bank, I find the Petitioner is not entitled to question the settlement.

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 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 the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but thatdoes 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 highexpectation 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.

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 of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy. " In that case, pruning of select list on reduction in 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 accordingto 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 it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any rightbecause 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 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 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/

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THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17,1929

[PART II-SEC . 3 ( ii) ]

these employees , therefore , remained a nullity . " Therefore, learned counsel for the Respondent contended thatthese 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 onthe 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 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 .

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 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 humb 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 Sower 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 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 ifsuch 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

15. Learned Senior Advocate further argued that evenin 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 opento 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 [ भाग II- खण्ड 3 ( ii) ]

6753 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

as per wait list. Under such circumstances , after expiry ofthe 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 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 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 aré also similar in nature and hence , the Petitioners are entitled for the same relief.

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 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 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 questionof confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further , inCDJ 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 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 than240 days of service by that itself would not confer any legal right upon him to be regularised in service .

The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of theGovernment in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

19. But , I find since the Supreme Court has held that temporary employees are not 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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is hot entitled to claim regularisation or reinstatenient in the Respondent/ Bank as alleged by him . Therefore , I find this point against thePetitioner .

Point No. 2:

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not 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 claimed by him No Costs .

21. Thus , the reference is answered according / 16. Relying on all these decisions , learned counsel for the Respondent.contended that since the Petitioner has not beenappointed 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

(Dictated to the P.A., transcribed and typed by 6754

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

[PART II-SEC . 3 ( ii) ]

Ex. No. Date

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 P. Kottaiyan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri M. Perumal

Documents Marked : ---

Ex . No. Date

Description

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

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation ofEx . Ml .

W3 244-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 1-05-91 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 15-3-97 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 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 Nil

Xerox copy of the service certificate issued by Vembattur branch .

W10 Nil

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

W11 Nil

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

W12 06-03-97 Xerox copy of call letter from Madurai zonal office For interview of messengar post-V . Muralikannan

W13 06-03-97 Xerox copy of the call letter fromMadurai zonal office for interview of messenger post-K. Subburaj .

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview messenger post--J . Velmurugan.

Description

W15 17-03-97 Xerox copy of the service particulars.- J. Velmurugan

W16 26-03-97 Xerox copy of letter advising selection ofpart timeMenial-G. Pandi .

W17 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W18 Feb. 2005 Xerox copy of the Pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

W19 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W20 09-11-92 Xerox copy of the Head Office circular No. 28 regarding Norms for sanction of messengar staff.

09-07-92

W21

Xerox copy of the minutes of the Bipartite meeting.

W22 09-07-92 Xerox copy of the settlement between Respondent/Bankn and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

07-02-06

W23

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

W24 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 .

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement .

27-10-88

M4 09-01-91 Xerox copy of the settlement .

M5 30-07-96 Xerox 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 ofthe order of Supreme Court in SLP No. 3082/99 .

Nil

M10

Xerox copy of the wait list of Madurai . Module.

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 and 16290/99 in W.A. No. 1893/99 .

[ भाग II-खण्ड 3 ( ii) ]

6755

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

नई दिल्ली , 17 अगस्त, 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. 42/2004.

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

का.आ. 2552.-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 42/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/302/1998- आई.आर. ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 17th August , 2007

"Whether the demand of the workman Shri I. Mariappan, wait list No. 382 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. 2552. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 42/ 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 17-8-2007.

[No. L- 12012/302/ 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. 42/2004 (Principal Labour Court CGID No. 18/99)

[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 workmen ]

BETWEEN

Sri . I.Mariappan

: I Party/Petitioner

AND

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

APPEARANCE

Forthe Petitioner

: Sri V. S. Ekambaram,

Authorised Representative

For the Management : M/s . D. Mukundan ,

Advocate

AWARD

1. The Central Government, Ministry ofLabour , vide Order No. L- 12012/302/98 - IR (B - I) dated 01-02-1998 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. 18/99 and issued notices

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 Sivakasi branch from 21-08-1984. 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 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 Sivakasi 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 ás a class IV employee . From 21-08-84 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Rajapalayam 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 1-4-1997 . Hence , the Petitioner raised a dispute with regard to his 6756

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II-SEC . 3 ( ii ) ] non- employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Government 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 Sections 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 by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The waitlist 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, 16-7-1988,7-10-1988,9-1-1991 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. 362 in wait list ofZonal Office, Madurai . So far 219 wait listed temporary candidates, outof 492 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 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 waitlist and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were 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 492 wait listed candidates, 219 temporary employees were appointed and since the Petitioner was wait listed at 362 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 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 Government 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 settlementdrawn under provisions of Sections 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 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 [ भाग II- खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

6757

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

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

Point No. 1:

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 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 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 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 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 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 that all the settlements made by the bank with the State Bank of IndiaStaff 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. 362for restoring the wait list of temporary messengers in the Respondent/

THE GAZETTE OF INDIA: SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

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 and are eligibleto 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 . 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 . MI deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of'A, B & C' is quite opposed to the doctrine of ' last come-first go' or first come- last go ' and therefore , the categorization in Clause 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 , 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 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 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 to wriggle 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 industry wise 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 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.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 . 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 6759 भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17, 1929

[ भाग II-खण्ड 3 ( ii) ]

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 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 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 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 12calendar months and they are in age group of 40to 50years 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 counsèl 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 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 (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 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 incase, 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 , 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 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

3625 GI/07-26 6760

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[PART II-SEC. 3 ( ii) ]

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 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 Govternment 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: Number 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 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.

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 1863 ) 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 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 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 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 froin 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.

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive 6761 [ भाग II- खण्ड 3( ii) ]

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betweenthe 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.

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 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 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 ofparties. " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER , LABOUR COURT, MADRAS , wherein it has beenheld 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 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 .

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 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 Government 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 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 m 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 [PART II-SEC . 3 ( ii ) ] 6762

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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 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 he 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 .

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 ; (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 bumb 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 circunistances 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 IISCC I 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 . "Sofras 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 inregularly 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 armount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them walid confifmation . The so called exercise of confirming

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 isnot 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 [ भाग II-खण्ड 3 ( ii) ]

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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. 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 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 .

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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against the Petitioner .

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 , 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 of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itis 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 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 himto be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position, as noticed hereinbefore . "

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and 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 claimed by him. No Costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected andpronounced by me in the open court on this daythe 31st January, 2007) .

K. JAYARAMAN , Presiding Officer 16. Relying on all these decisions , leamed 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 6764

THE GAZETTE OF INDIA: SEPTEMBER 8 , 2007/BHADRA 17 , 1929

Witnesses Examined:

For the Petitioner : WWI Sri I. Mariyappan WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan MW2 Sri M. Perumal

Documents Marked :-

Ex . No. Date

Description

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

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

W3 24-4-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 1-05-91 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 15-3-97 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 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 01-07-85 Xerox copy of the service certificate issued by Sivakasi branch .

W10 19-11-9 ) Xerox copy of the service certificte issued by Sivakasi branch .

W11 25-07-97 Xerox copy of the service certificate issued by Rajapalayam branch .

W12 Nil

Xerox copy of the attendance register .

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.

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of messenger post-V. Muralikannan.

W16 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of messengar post-K. Subburaj .

[PART II-SEC. 3 ( ii ) ] W17 06-03-97 Xerox copy ofthe call letter from Maduria zonaloffice For interview of messenger post-J. Velmurugan.

W18 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

W19 26-03-97 Xerox copy of the letter advising selectio parttime Menial-G . Pandi .

31-03-97

W20

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

W21 Feb. 2005 Xerox copy of the Pay slip of T. Sekar forthe month of February , 2005 wait list No.395 ofMadurai Circle .

W22 13-02-95 Xerox copy of the Madurai Module Circularletter 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 .

W25 09-07-92 Xerox copy of the settlement between Responent/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

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 Xeгox 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 inSLP No. 3082/99 .

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

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

6765 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

नई दिल्ली , 17 अगस्त, 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.44/2004.

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

का.आ. 2553.-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 44/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/364/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 17th August , 2007

"Whether the demand of the workman Shri S.GP. Chanrasekaran , wait list No. 294 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. 2553.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 44/ 2004) of the Central 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 17-8-2007 .

[No. L- 12012/364/ 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.44/2004 (Principal Labour Court CGID No. 60/99)

[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]

BETWEE

Sri . I. P. Chandrasekaran

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative

For the Management : M/ s . R. Krishnamachari , Advocate

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 Jeyamangalam branch from 10-06-1983 . 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 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 Teppakulam 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 10-06-83 , the Petitioner hasbeen working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Jeyamangalam 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 1-4-1997. Hence , the Petitioner raised a dispute with regard to his The Central Government, Ministry of Labour , vide OrderNo. L- 12012/364/98 - 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. 60/99 and issued notices 6766

[PART II-SEC. 3 (ii )] THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929

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 Governmentto 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 Sections 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 ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The waitlist 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 , 16-7-1988 , 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 ) 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 . 294 in wait list of zonal Office , Madurai . So far 219 wait listed temporary candidates, out of 492 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 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 waitlist and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were 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 492 wait listed candidates, 219 temporary employees were appointed and since the Petitioner was waitlisted at 294 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question 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 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 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 [ भाग II-खण्ड 3 (ii) ]

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 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 ( 3 ) of the Act. As per recruitment rules 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. 294 for restoring the wait list of temporary messengers in the Respondent / Bank and consequential appointment thereupon as temporary messenger is justified?"

3625 G1/07-27

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भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17, 1929

(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 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 connecteddisputes 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 Pétition before the Supreme Court to protect the legal and constitutional rights of the workmen concernedand 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 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 .

[PART II-SEC. 3 ( ii )] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

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 forthe benefit of the workmen to whom Section 25F applies butfor 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 . MI 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 . ΜΙ 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 I ( a ) of Ex . MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengeriał 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 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 . Ml . M3 and M4 respectively . But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras

circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW 1 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 thatthe 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 ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . Itis further contended on behalf of the Petitioner that as perdeposition of MWI wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industry wise 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 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 . 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 thetime ofconciliation 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 [ भाग II-खण्ड 3 ( ii ) ]

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भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

personal knowledge about the settlements which are marked as Ex . MI to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was 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 Disputes Act , therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 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 condus.med 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 to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour .

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 aisy were not in continuous servi.e . Hence , the quest of regular appointment/aron does not arisc at ali and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had 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 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 inaccordance 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 MWI . Therefore , the termination of the Petitioner who was in regular service of the Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of 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 . MI toM4made interms 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 6770

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II -SEC . 3 ( ii ) ]

proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings underSection 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 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 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 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 Number 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 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 Stateinent .

accepted the scatlements 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 EmploymentExchange 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 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 il 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 workonen. " 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 conciliation proceedings with a recognised majority union wall be binding on all workmen of the establishment , even those who hetong to the minority union which had objected to the same . Te that extent, it departs from the ordinary law ofcontracts , the object abviously is to uphold the sanctity of set oments reached with the active assistance of the conciliation officer and todiscourage an individual mployee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases , where ther may be allegations of mala fides . fraud or even comaption 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 ." Laced counsel for the Respondent further relied on the tulingan.ported in 1997 1LLJ 308 K.C.P. LTD . VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has heid that settlements are divided into two categories panele i those arrived at outside the conciliation

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

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 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 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 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 .

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 of competitive examination acquires a right of appointment in Government service in anexisting 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 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 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 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 heid 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 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.

6772

[PART II-SEC. 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

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 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 perr.nitted 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 .

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 ofhis 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 inust 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 IISCC 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 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

15. Learned Senior Advocate further argued that even inrecent 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 , theSupreme Court while laying down the law , has clearly 6773 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

such circumstances , it cannot be questioned by the Petitioner .

17. I find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation 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 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.

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 e 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 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 ünder 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 of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore. "

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 mustbe considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against the Petitioner .

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary 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 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 preparedby 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 thern. Under 6774

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

Witnesses Examined :-

Forthe Petitioner WW1 Sri P. Chandrasekaran WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan

MW2 Sri P. Perumal

Documents Marked :----

Ex . No. Date

Description

WI 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 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 1-05-91 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 instructions in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

W9 13-06-84 Xerox copy of the service certificate issued by Jeyamangalam branch.

W10 08-12-84 Xerox copy of the service certificte issued by Theni branch .

W11 26-08-87 Xerox copy of the service certificte issued by Theni branch .

W12 17-6-88 Xerox copy of the service certificate issued by Jeyamangalam branch.

W13 26-03-94 Xerox copy of the service certificate issued by Gullapuram branch .

W14 Nil

Xerox copy of the service certificate issued by Teppakulam branch.

W15 17-12-97 Xerox copy of the service certificate issued by Siruthozhil branch .

W16 13-01-98 Xerox copy of the service certificate issued by Teppakularn branch .

W17 Nil

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

W18 Nil Xerox copy of the reference book on staff matters Vol . III consolidated upto 31-12-95 .

[PART II-SEC . 3 ( ii) ] W19 06-03-97 Xerox copy of the call letter fromMadurai zonal office for interview of messenger post-V . Muralikannan .

06-03-97

W20

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

06-03-97

W21

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

W22 17-03-97 Xerox copy of the service particulars- J.Velmurugan .

W23 26-03-97 Xerox copy of the letter advising selection of part time Menial-G . Pandi .

W24 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W25 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W26 13-02-95 Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of wait list .

W27 09-11-92 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 of the Bipartite meeting.

W29 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 .

07-02-06

W30

Xerox copy of the Head Office 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 .

Forthe Respondent/Management : -

Ex . No. Date

Description

MI 17-11-87 Xerox copy of the settlement .

Xerox copy of the settlement. 16-07-88

M3 27-10-88 Xerox copy of the settlement .

Xerox copy of the settlement .

09-01-91

Xerox 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 of High Court of Orissa.

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

Nil

M10

Xerox copy of the wait list of Madurai Module.

M11 25-10-99 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, 17 अगस्त, 2007

का.आ. 2554.-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 47/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था । [सं. एल -12012/372/1998 - आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 17th August, 2007

S.O. 2554. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 47/ 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 17-8-2007 .

[No. L- 12012/372/ 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 , PresidingOfficer Industrial Dispute No. 47/2004

[Principal Labour Court CGID No. 63/99] (In the matter of the dispute for adjudiation under clause(d) of sub - section ( 1 ) and sub - section 2(A) of Section10 of the Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen)

BETWEEN

Sri A. Duraipandi

6775

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17, 1929

Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 63/99 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. 47/2004 .

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

"Whether the demand of the workman Shri A. Durai , Pandi wait list No. 301 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

TheAssistant General Manager, II Party/Management StateBank of India , Z.O. , Madurai .

APPEARANCE

Forthe Petitioner

: Sri V. S. Ekambaram, Authorised Representative.

For the Management : M/ s . R. Krishnamachari , Advocate

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/372/ 98 - IR ( B- I ) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal 3625 GI/07-28

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 Ambasamudram branch from 05-07-1984. 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 underSection 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 aboutthe interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Ambasamudram 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 05-07-1984 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Ambasamudram 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 6776

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[PART II-SEC . 3 ( ii) ] 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 hasmade 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 Sections 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 himtowork 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 17-11-1987 , 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 ) 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. 301 in waitlist 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 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 hadimplemented 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 afore- said settlements , out of 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 301 , 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 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 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 6777 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

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

Point No. 1:

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 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 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 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 Pétition 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 atthe 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules 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 :-

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II-SEC . 3 ( ii )) 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 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.MI 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 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 isillegal . 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 , copy of which is marked asEx .W8 . Further , the appointment of daily wage basis for regularmessengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is notvalid . 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 was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . Ml , M3 and M4 respectively. But, when MW1 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 MW I 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 thatthe 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 attemptto wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of 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 Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not inconformity withthe instructions ofEx . M2 and non -preparation of separate panels amounts to violation of circular . Secondly , it has not beenprepared 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 theCourt order in WMP No. 11932/91 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 . 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 6779 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

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 Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther 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 daysin 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 to50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances, this Tribunal has to pass an award in their favour .

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 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 failsto accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any documentto show how he has arrived at the seniority and till 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 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/ 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 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

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[PART II-SEC . 3( ii) ]

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 ifthere 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 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will of the parties and is a pointer to there being 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 Governmentmay 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 Number 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 .

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/ 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 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 joband 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 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 ofmala 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 furtherrelied on the rulings reported in 1997 ILLJ 308 К.С.Р. 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

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[ भाग II-खण्ड 3 ( ii ) ]

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 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 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 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 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, 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/ Bankand 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 .

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.

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 ofbottom 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 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 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 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 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 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 should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND 6782

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[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 , 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 isto be dismissed with costs.

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 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 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 Supreine Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 11 SCC 1 ASHWANI KUMAR ANDOTHERS 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 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.

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 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 onthat ground alone , it would not be appropriate tojettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode of public appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition 6783 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist . 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 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 .

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, ifthe 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 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 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 ofthe settled legal position , as noticed hereinbefore ."

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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore, I find this point against thePetitioner .

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him. No Costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this daythe 3 I st 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 wasonly to restore the wait list and also for appointment thereon as temporary messenger as pèr 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.

K. JAYARAMAN , Presiding Officer 3625G1/07-29 6784

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17 , 1929

Witnesses Examined: ---

Forthe Petitioner WW1 Sri A. Durai Pandi WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan

MW2 Sri M. Perumal

Documents Marked :-

Ex. No. Date

Description

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

W2 20-04-88 Хегох copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx. M1 .

W3 24-04-91 Хегоx 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 instructions in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work .

W9 Nil Xerox copy of the service certificate issued by Ambasamudram branch .

W10 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care and service conditions .

WI1 Nil

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

06-03-97

W12

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

06-03-97

W13

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

06-03-97

W14

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

[PART II-SEC. 3( ii )] W15 17-03-97 Xerox copy of the service particulars- J. Velmurugan.

W16 26-03-97 Xerox copy of the letter advisting selection ofpart time Menial-G. Pandi .

W17 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W18 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 ofMadurai Circle .

W19 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W20 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

W21 09-07-92 Xerox copy ofthe minutes ofthe Bipartite meeting.

W22 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.

W23 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

W24 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

Хегоx copy of the settlement.

17-11-87

Xerox copy of the settlement .

16-7-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

9-01-91

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings .

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

M8 15-5-98

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

M9 10-7-99 Xerox copy of the order ofSupreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list of Madurai 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) ]

नई दिल्ली, 17 अगस्त , 2007

का.आ. 2555.-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 46/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/374/1998- आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 17th August, 2007

S.O. 2555. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 46/ 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 17-8-2007.

[No. L- 12012/374/ 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. 46/2004

[Principal Labour Court CGID No. 62/99] (Inthe matter of the dispute for adjudication under clause(d) of sub - section ( 1 ) and sub - section 2 (A) of Section10 of the Industrial Disputes Act , 1947 (14 of 1947), between the Management of State Bank of India and their workmen)

BETWEEN

Sri S. Thirumalai

6785

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

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. 62/99 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. 46/2004 .

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

"Whether the demand of the workman Shri S. Thirumalai , wait list No. 451 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. , Madurai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative .

For the Management : Mr. R. Krishnamachari , Advocate

AWARD

The Central Government, Ministry of Labour, vide Order No. L- 12012/374/98 - IR (B- I) dated 05-02-1999 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 Srivaikundam branch from 16-05-1984 . 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 Srivaikundam 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 16-05-1984 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Tuicorin 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 such, the Manager of the branch informed the Petitioner orally on 31-3-1997 that his services are not 6786

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC . 3 (ii) ] 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 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 innot absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 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 .

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 ) 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. 451 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 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 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 451 , 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.

6787 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

thereupon as temporary messenger is justified?"

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

Point No. 1 :

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. In this case , on behalf of the Petitioner it is contended thatthe 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 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 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules 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 :----

(1) "Whether the demand of the Petitioner in Wait List No. 451 for restoring the wait list of temporary messengers in the Respondent / Bank and consequential appointment

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II-SEC. 3 (ii)] has no valid and enforceable right for appointment as Sections 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 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 . 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 . 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 . 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 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 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 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 . M 10 in this case . Those candidates under Ex . MIO 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 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 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 and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It isfurther 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 oftemporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M10 namely wait list is not inconformity withthe instructions of Ex . M2 and non - preparation of separate panels amounts to violation of circular . Secondly, it has not beenprepared 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 theCourt 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 daysput 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 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.

6789 [भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

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 Disputes Act , therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther 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 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 to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

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 ofthe 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 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 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 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 onlywith 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 . Ml to M5 . Above all, though the Respondent/Banik

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the referénce madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were 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/ 6790

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/ BHADRA 17, 1929

[PART II-SEC . 3 (ii) ]

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 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 fairand 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 Number 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 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 .

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 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 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 job and received terminal benefits , but the workınen 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 ." 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 inerely parties

[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 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. čase 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 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 .

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 isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

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 ofbottom 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 the Respondents 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 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 ;

3625 G1/07-30 6792

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[PART II-SEC. 3 (ii )]

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 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 .

3 (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 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 ofLower Courts . He further relied on the decision reported in 1997 II SCC I 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 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

15. Learned Senior Advocate further argued that even inrecent 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 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 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 6793 भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17, 1929

[भाग II-खण्ड 3 ( ii) ]

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 the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist. 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 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 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 of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as 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, 1 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. )

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 .

K. JAYARAMAN , Presiding Officer 6794

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

[PART II-SEC . 3 (ii) ] Witnesses Examined :-

W16 06-03-97

For the Petitioner

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

WW1 Sri S Thirumalai WW2 Sri V. S. Ekambaram

W17 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

For the Respondent MW1 Sri C. Mariappan MW2 Sri M. Perumal

W18 26-03-97

Documents Ma, ked :-

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

Ex. No. Date

W19 31-03-97

Description

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

WI 01-0888

W20 Feb. 2005

Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

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

W21 13-02-95

20-04-88 Хегох copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex . M1 .

W3 24-04-91

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

W22 09-11-92

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

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

W4 01-05-91

W23 09-07-92

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

Xerox copy of the minutes of the Bipartite meeting.

W24 09-07-92

20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

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 .

15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messnger posts .

W25 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

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.

W26 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

For the Respondent/Management :-

W8 Nil Xerox copy of the instructions in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

Ex . No. Date

Description

W9 28-03-85

M1 17-11-87 Xerox copy of the settlement.

Xerox copy of the service certificate issued by Srivaikundam Branch .

M2 16-7-88 Xerox copy of the settlement .

W10

M3 27-10-88 Хегоx copy of the settlement .

Nil Xerox copy of the service certificate issued by Tuticorin Branch .

M4 9-01-91 Xerox copy of the settlement .

W11 Aug. 99

Xerox copy of the service certificate issued by Tuticorin inain Branch .

30-07-96 Xerox copy of the settlement .

W12 Nil

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings .

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

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

M8 15-5-98

W13 Nil

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

M9 10-7-99

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

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

W14 06-03-97

M10 Nil

Xerox copy of the wait list of Madurai Module.

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

M11 25-10-99

W15 06-03-97

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

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

[ भाग II-खण्ड 3 ( ii) ]

नई दिल्ली , 17 अगस्त , 2007

का.आ. 2556.-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 45/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था । [सं. एल -12012/371/1998 - आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 17th August, 2007

S.O. 2556. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 41 / 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 17-8-2007 .

[No. L- 12012/371 / 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. 45/2004

[Principal Labour Court CGID No. 61/99 ] (Inthe matter of the dispute for adjudiation under clause (d) of sub - section ( 1 ) and sub - section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen)

BETWEEN

Sri R. Ramachandran

6795

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 61/99 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. 45/2004.

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

"Whether the demand of the workman Shri R. Ramachandran , wait list No. 370 or 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. , Madurai .

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative For the Management : Mr. R. Krishnamachari , Advocate

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/ 371 /98 - IR (B - 1) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal 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 Tuticorin main branch from 04-01-1984 . 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 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 ofthe Tuticorin main ADB 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 4-1-84 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also. While working on temporary basis in Tuticorin 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 such , the Manager of the branch informed the Petitioner orally on 31-3-1997 that his services are not 6796

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 (ii) ] 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 Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait 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 workınen 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 .

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. 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 forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 370 in waitlist 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 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 492 wait listed candidates 219 temporary employees were appointed and since the Petitioner was wait listed at 370, 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 questionedby 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.

[ भाग II-खण्ड 3 ( ii) ]

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 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 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules 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 theRespondent/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. 370 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment

6797

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 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 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) 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 . 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 furtherprayed for reinstatement with back wages and other attendant benefits .

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 ofthe I.D. Act and it is preposterous to contend that the Petitioner 6798

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC . 3 ( ii) ] has no valid and enforceable right for appointment as Sections 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 1.D. Act providing for retrenchment is not enacted only for the benefit of the workmentowhom 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.Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & C' is quite opposed to the doctrine of ' last come-- first 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 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 inEx. 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 was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . Ml , M3 and M4 respectively . But, whenMW1 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 to wriggle out the illegality committed or perpetrated by the Respondent/ Bankby combing equals with unequals. It isfurther 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 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 of Ex . M 10 namely wait list is not inconformity withthe instructions of Ex. M2 and non -preparationnon - preparation ofseparate 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 theCourt order in WMP No. 11932/91 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 . 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.

6799 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II-खण्ड 3 ( ii) ]

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 Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 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 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 anaward in their favour .

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference made hy 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 ID . Act , in lieu of the provisions of law and implemented by the Respondent/ Further, even before or after the settlement on absorption oftemporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out ofthe 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 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 employworkmen 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 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. 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 documentary evidence in support of the averment and also for theaverment 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 to be a copy of ininutes 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 . 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 , 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. M1 to M5 . Above all , though the Respondent/Bank

3625 Gl/07-31 6800

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II-SEC . 3 ( ii )]

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 ifthere 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 thefree will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter ofyet another industrial dispute which an appropriate Govermemt 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 Number 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 Goverment 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,

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 ofhis 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 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 relled 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 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 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 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 unionfrom scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations ofmala 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

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

6801 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 ofrefusing 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 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 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 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. 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 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 isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

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 ofbottom 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 SCC584 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 the Respondents 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 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 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 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;

6802

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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 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 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 .

(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 uponby 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 irrespective of and without taking into accoum 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 SCCLASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation ofappointment in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itreif 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 ir guiar manner or On ad -hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is ancuthorised and is not against any sanctioned vacancy, question of gularising the incumbent on such a non- existing scanny would never survive for consideration and even if such purported regularisation or confirmation is given 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 , learn: 1 counsel for the Respondent contended that these terapo ,ery, employees were appointed only due to exigentes and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and theretore, they are not entitled to claim any absorption inthe Respondent/ Bank . Further , he relied on the rulings reerted in AIK 1997 SCC 3657 HIMANSHU KUMAR VAIYARTILLORS . S. STATE OF BIHAR AND ORS .

15. Learned Senior Advocate further argued that even inrecentdecision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Suprenie Court has held that " merely because a teinporary 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 adhoc 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. Bydoing 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 6803

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[भाग II-खण्ड 3 ( ii) ]

such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made 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 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.

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 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 " 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 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 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."

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 ofthe Supreme Court probably having regard to the changes in the policy decisions ofthe Goverment in the wake ofprevailing market economy, globalisation , privatisation and outsourcing is evident. I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner .

Point No. 2:

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

20. In view of my foregoing findings that the Petitioner is a temporary 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 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 ofwait list or number allotted to them . Under 6804

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

Witnesses Examined :-

For the Petitioner WW1 Sri R. Ramachandran WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri M. Perumal

Documents Marked :-

Ex. No. Date

Description

WI 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 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 .

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 of Zonal Office , Chennai about filling up of vacancies of messnger 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 07-05-87 Xerox copy of the service certificate issued by Tuticorin Branch .

W10 Nil Xerox copy of the statement showing number of days workd by Petitioner in Tuticorin branch

W11 Nil

Xerox copy of the service certificate issued by Tuticorin branch .

W12 21-10-83 Xerox copy ofthe letter from Employment Exchange to the Petitioner for the interview.

W13 Nil Xerox copy of the attendance register.

W14 Nil Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate care & service conditions .

W15 Nil Xerox copy of the Reference book on Staff matters Vol.III consolidated upto 31-12-95 .

W16 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-V. Muralikannan .

[PART II-SEC . 3 ( ii )] W17 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-K. Subburaj .

W18 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-J. Velmurugan .

W19 17-03-97 Xerox copy of the service particulars- J. Velmurugan.

W20 26-03-97 Xerox copy of the letter advising selection ofparttime Menial-G. Pandi .

W21 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W22 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle ,

W23 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W24 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messinger staff.

W25 09-07-92 Xerox copy of the minutes ofthe Bipartite meeting.

W26 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 .

W27 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

W28 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

M1 17-11-87 Xerox copy of the settlement .

M2 16-7-88 Xerox copy of the settlement .

M3 27-10-88 Xerox copy of the settlement .

M4 9-01-91 Xerox copy of the settlement .

M5. 30-07-96 Хегоx copy of the settlement.

M6 9-06-95 Xerox copy ofthe minutes of conciliation proceedings .

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court ofOrissa .

M9 10-7-99 Xerox copy of the order ofSupreme Court in SLP No. 3082/99 ,

M10 Nil

Xerox copy of the wait list of Madurai Module.

Mil 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

6805

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

[भाग II-खण्ड 3 ( ii) ]

नई दिल्ली, 20 अगस्त, 2007

the dispute on its file as CGID No. 70/99 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. 22/2004.

का.आ. 2557.-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 22/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/265/ 1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th August , 2007

"Whether the demand of the workman Shri N. Sundaramoorthi , wait list No. 226 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. 2557. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 22/ 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 20-8-2007 .

[No. L - 12012/265 / 1998-1R (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. 22/2004

[Principal Labour Court CGID No. 70/99 ]

(In the 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

Sri N. Sundaramoorthi

: I Party/Petitioner

AND

The Assistant General Manager, II Party/Management State Bank of India , Zonal Office . Coimbatore.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

For the Management : M/s. K. S. Sundar, Advocate

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 Tiruppur Main branch from 13-08-84 . 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 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 Tiruppur Mainbranch . 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 13-08-1984, the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Tiruppur OSB 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. The Central Government, Ministry ofLabour , vide Order No. L - 12012 /265 / 98 - IR (B - I ) dated 5-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken 6806

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[PART II-SEC . 3 (ii) ] 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 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 t absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award. Eventhough 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 bene fits 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 .

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 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 einployees who are claining perraanent 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 ) 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. 226 in wait list ofZonal Office, Coimbatore. So far 211 wait listed temporary candidates, out of 705 wait listed temporary employees were permanently appointedby Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was 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 705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 226, 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 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 6807 भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

[ भाग II-खण्ड 3 ( ii) ]

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

Point No. 1:

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 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 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 relevantguidelines/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 Court to protect the legal and constitutional rights of the workmen concernedandwhile 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 . 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 (1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rules 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 theRespondent/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 :---

3625 Gl/07-32 6808

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[PART II-SEC . 3( ii ) ]

Petitioners who are retrenched messengers and are eligible tobe reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the 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 asEx . M8 which constitute/relate to the circular instructions ofthe 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 theirtestimonies 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 & 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 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'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. M 10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex.M10 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 tothiswait 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 by the Respondent/Bankby combing equals with unequals . Itis 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 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 ofEx. M2 and non -preparation of separate panels amounts to violation of circular. Secondly, it has not beenprepared 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 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 . 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 6809

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भारत का राजपत्र

[भाग II-खण्ड 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 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 of the Respondent/Bank and they are entitled to the benefits under the provisions of1.D. Act. It is further contended onbehalf of the Petitioner that though some ofthe 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 onlywhen 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 selectedthe 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 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.

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 ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim ofthe Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed engaged in leave vacancy was used as a device to take them out ofthe 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 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 there fore, 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 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 ofthe averment 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 of temporary employees. Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy ofminutes 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. M1 to M4 made in terms of Ex. M6. Though the Respondent/Bank produced Ex. M7 and M1I 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 6810

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[PART II-SEC. 3(ii) ]

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 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment offacts or even corruption and other inducements, it couldbe subject - matter ofyet 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 Number 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.

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 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 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 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 thesanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations ofmala fide 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 К.С.Р. LAD. VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided int two categories namely (i) those arrived at outside He conciliation proceedings under Section 18( 1) of the J.D. Act and ( ii) those arrived at in the course of canciliation proceedings under Section 18 (3). A seulement of the first category has limited application and binds merely parties to it and settlement of the second category madewith a recognised majority union has extended

[भाग II-खण्ड 3 ( ii) ]

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 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 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 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. TheLabour 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 .

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.

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 anda 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 6SCC 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 the Respondents 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 INDIAwherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent 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 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time ofwait list has been exhausted , now the Petitioner cannot question that he 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 6812

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

[PART 11-SEC . 3( ii)]

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.

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 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 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 , 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

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii ) ]

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 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 ofthe Respondent /Bank .

18. Further , the representative for the Petitioner contended 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.

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 ofconfirmation 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 "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 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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ."

19. But, I find since the Supreme Court has held that temporary employees are not 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 Courtprobably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as 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 daythe 31st January, 2007. )

K. JAYARAMAN, Presiding Officer 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amendedby 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.

Witnesses Examined:-

Forthe Petitioner

WWI Sri N. Sundaramurthy WW2 Sri V. S. Ekambaram 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 6814

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan

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 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation ofEx. MI .

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 instructions in Reference book on staff about casuals not to be engaged at office / branches to domessengerial work .

W9 29-04-85 Xerox copy of the service certificate issued by Tiruppur Branch.

W10 18-07-86 Xerox copy of the service certificate issued by Tiruppur Main Branch. 28-06-89

W11

Xerox copy of the service certificate issued by Thennampalayam Branch.

W12 30-05-94 Xerox copy of the service certificate issued by Dharmapuri Branch .

W13 22-07-96 Xerox copy of the service certificate issued by Tiruppur Branch.

W14 Nil Xerox copy of the administrative guidelines , in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W15 Nil Xerox copy of the Vol . III of Reference book on Staffmaters upto 31-12-95 .

06-03-97

W16

Xerox copy ofthe call letter from Madurai Zonal Office for interview of messenger post-V . Muralikannan .

06-03-97

W17

Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-K. Subburaj .

[PART II -SEC. 3(ii) ] W18 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-J . Velmurugan.

W19 17-03-97 Xerox copy of the service particulars --- J. Velmurugan .

W20 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W21 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W22 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

W23 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W24 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

W25 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W26 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 .

W27 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W 28 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

M1 17-11-87 Xerox copy of the settlement .

M2 16-7-88 Xerox copy of the settlement .

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

9-01-91

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xerox copy ofthe minutes ofconciliation proceedings.

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

M8 15-5-98 Хегох copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa .

M9 10-7-99 Xerox copy ofthe order of Supreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy ofthe wait list of Coimbatore Module.

25-10-99

M11

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

6815

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

[ भाग II-खण्ड 3 (ii ) ]

नई दिल्ली, 20 अगस्त, 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. 71/99 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. 23/2004.

का.आ. 2558. 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 पंचोट ( संदर्भ संख्या 23/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/266/1998- आई आर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th August, 2007

"Whether the demand of the workman Shri A. Ramasamy , wait list No. 223 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. 2558. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 23/ 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 ofIndia and their workmen, received by the Central Government on 20-8-2007 .

[No. L- 12012/266/ 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 Industrial Dispute No. 23/2004 (Principal Labour Court CGID No. 71/99)

[In the matter of the dispute for adjudication under clause (d) ofsub - section ( I ) and sub- section 2(A) of Section10 of the Industrial Disputes Act , 1947 (14 of 1947) , between the Management of State Bank of India and their workmen ]

BETWEEN

: 1 Party/Petitioner

Sri A. Ramasamy

AND

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

APPEARANCE

: Sri V. S. Ekambaram ,

For the Petitioner

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 Tiruppur Main branch from 25-07-1983 . 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 of Writ Petition filedby 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 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 Tiruppur Main 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 some times performing work in other branches also . While working on temporary basis in Tiruppur OSB 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 1. The Central Government Ministry of Labour , vide Order No. L- 12012/266/98 -IR (B - I ) dated 5-02-1999 has

3625 G1/07-33 6816

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II -SBC. 3 ( ii) ] 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 referredto 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 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 Sections 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 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 , 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. 579 in wait list ofZonalOffice,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 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 extendedupto 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 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 705 wait listed candidates, 219 temporary employees were appointed and since the Petitioner was waitlisted at 579 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 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 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 implemented by Respondent/Bank. The claim of the Petitioner is not bonafide 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 say that the Petitioner was discharging the work of 6817 भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii) ]

Point No. 1 :

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 .

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/circu 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 concemed 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 . 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 listedworkmen 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 (1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules 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 :

(1) "Whether the demand of the Petitioner in Wait List No. 223 for restoring the wait list of temporary messengers . In the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 (ii)] the Petitianer 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 1.D. Act providing for retrenchment is not enacted only , forthe benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted anly 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 . Mi 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 & 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 , copy of witich 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. Therelore , 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 Respedeni/Bank has alleged to have prepared only one waitlis, 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 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 M nas spoken about the settlements , he deposed that seulement dated 27-10-88 was not included in the Madras sircle 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 tothiswait 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 towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex. M10 comprises ofboth messengerial and non- messengerial candidates .While thetemporary 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 anddistinct 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 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/Bankto release the list of successful candidates pursuant to the first advertisement published in' The 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 . M 10 has been prepared in violation of instructions and ceased to have the credibility attachedto 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 6819 भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

[भाग II- खण्ड 3 ( ii) ]

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 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 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 onlywhenthe 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 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.

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 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 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.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 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 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 ofconciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad , it is neither a 18 (3) settlement nor 12 ( 3 ) settlement as claimed by the 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 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 6820

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929

[PART II-SEC. 3 ( ii) ]

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 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 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 matte 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 fairand 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 Number 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 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.

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 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 any union and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 1LLJ 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 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. " Itfurther held that " there may be exceptional cases , where there may he 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 duc 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 partiesto 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

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

[ भाग II- खण्ड 3 (ii ) ]

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 , 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 hir 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 .

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 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 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 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 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 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 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 6822

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 (ii) ]

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 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 , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD . AND OTHERS Vs. SOMVIR SINGH , wherein the 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 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 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 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 cxigencies 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 1.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 , 6823 भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

[भाग II-खण्ड 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 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 entitled to claim any rights for regularisation, merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought aboutby the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the 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.

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 , inCDJ 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 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?

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:

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 A. Ramasamy WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri S.Srinivasan

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 issuedby Respondent/Bank for implementation of Ex. M1 .

3625 G1/07-34 6824

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3(ii)] Ex. No. Date

Ex. No. Date

Description

W3 24-4-91

W19 31-03-97 Xerox copy of the appointment order to Sri . G. Pandi .

W20 Feb. 2005

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

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

01-05-91 Xerox copy of the advertisement in The Hindu on daily Wages based on Ex . W4.

W21 13-02-95

W5 20-08-91

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

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

W22 9-07-92

W6 15-03-97

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

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

W23 09-7-92

Xerox copy of the Minutes of the Bipartitemeting.

25-03-97

W24 09-07-92

Хегохx copy of the circular of Respondent/Bank to all Branches regarding indentification 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 .

W25 07-02-06

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

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

13-02-84 Xerox copy of the service certificate issued by TiruppurBranch.

W26 31-12-85

W10 17-08-85 Xerox copy of the service certificate issued by Tiruppur branch .

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

W11 19-06-95

For the Respondent/Management : ---

Xerox copy of the service certificate issued by Tiruppur Overeas branch .

Ex. No. Date

W12 Nil

Description

M1 17-11-87 Xerox copy of the settlement .

M2 16-07-88 Хегох copy of the settlement .

Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respodent /Bank regarding recruitment to subordinate cadre & service conditions .

27-10-88 Хегоx copy of the settlement .

W13 Nil

M4 09-01-91 Xerox copy of the settlement .

M5 30-07-96 Xerox copy of the settlement .

Xerox copy ofthe Vol . III of Reference book on Staff matters Vol III consolidated upto 31-12-95.

M6 09-06-95

W14 6-3-97

Xerox copy of the minutes of conciliation proceedings .

Xerox copy ofthe call letter from Madurai zonaloffice For interview of messenger post-V. Muralikannan .

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

W15 06-03-97

M8 15-05-98 Хегоx copy of the order in OP. No. 2787/97 of High Court of Orissa .

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

W16 06-03-97

10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

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

M10 Nil

Xerox copy of the wait list of Coimbatore Module.

W17 17-03-97 Xerox copy of the service particulars- J.Velmurugan .

M11 25-10-99

W18 26-03-97

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

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

6825 भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

[भाग II-खण्ड 3( ii) ]

नई दिल्ली , 20 अगस्त, 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. 337/99 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. 39/2004.

का.आ. 2559.-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 39/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/575/1998 - आई आर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th August , 2007

"Whether the demand of the workman Shri A. Ramasamy, wait list No. 450 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. 2559.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 39/ 2004) of the Central Government Industrial Tribunal - cum- Laour 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 20-8-2007.

[No. L- 12012/575 / 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. 39/2004

(Principal Labour Court CGID No. 337,/99)

[In the 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

: I Party/Petitioner

Sri C. N. Arulraja

AND

The Assistant General Manager , II Party/Management State Bank of India , Zonal Office, Coimbatore .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative

For the Management : M/s. K. Veeramani , 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 Tiruchengodur 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 iswith 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 Tiruchengodu branch . He was called for an interview by a Committee appointed by Respondent/ Bank in this regard. But, they have not informed the result ofinterview 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 some times performing work in other branches also . While working on temporary basis in Tiruchengodu 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. The Central Government Ministry of Labour, vide Order No. L- 12012/575/98 - IR (B- I ) dated 26-03-1999 has 6826

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929

[PART II-SEC. 3( ii) ] 1-4-97 . Hence , the Petitioner raised a dispute with regardto 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 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 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 Sections 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 amountsto 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 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 praystogrant 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 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 Sections 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 bonafide 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 ) 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. 450 in waitlist ofZonal Office , Coimbatoare . So far 211 wait listed 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 . 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 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 of 36 calendar months were to be considered .As per clause 7, the lerigth 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 31-3-1997 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 705 wait listed candidates, 211 temporary employees were appointed and since the Petitioner was wait listed at 579 he was not appointed . The said settlements were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to 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 Tribunai 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 correctto 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 praysto 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 listedworkmen 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 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 :-

(1) "Whether the demand of the Petitioner in Wait List No. 450for restoring the wait list of ternporary messengers . In the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

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

6827

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

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 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 ) 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 .

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3( ii)] 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 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 timeto 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 & 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 , 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 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 was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which aremarked as Ex . Ml , 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

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 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 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 bythe Respondent/Bankby combing equals with unequals . Itis 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 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 ofArticles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex.M 10 namely wait list is not inconformitymity 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 . M 10 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 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 6829

भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii) ]

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 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 12calendar 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 tha 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 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.

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 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 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.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 for the averment of MW1 . 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 . 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 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 voluntary retirement scheme , in the Respondent/Bank it wasimplemented only in the year 2001 and it constitutes 6830

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[PART II-SEC. 3( ii) ]

ofthe 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 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation of 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 workman with wait list Number 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 contendedby the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 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 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 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) ofthe 1.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application andbinds 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

[भाग II-खण्ड 3 (ii ) ]

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 cannotgo behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties ." Healso 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 itframed 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 isbeyond 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 betweenthe 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.

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 ofvacancies andconsequently , a certain number ofbottom personswere removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has heid 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. Consideringthe object with which the panel was prepared andthe 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 panelforpermanent 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 dismissingthe 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 avacancy 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 ofthe Respondent/Bank in preparingthe 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 applications which means he had 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

3625 Gl/07-35 6832

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007/BHADRA 17, 1929

[PART II-SEC. 3 ( ii) ]

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.) 754wherein 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 permanentby 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 ofRespondent/Bank cannot be given to the Petitioner and , therefore, the claim is to be dismissed with costs .

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 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 impugnéd 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 ofthese employees whose entry itself was illegal and void isconcerned, 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 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 & RS . 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.

[ भाग II- खण्ड 3( ii) ]

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 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.

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:

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 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 .

Forthe Petitioner WW1 Sri N. Arul Raja WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri S.Srinivasan

Documents Marked :---

Ex. No. Date

Description

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

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 (ii )] Ex. No. Date

Ex. No. Date

Description

W2 20-04-88

W18 Feb. 2005

Xerox copy of the administrative guidelines Issuedby Respondent/Bank for implementation of Ex.M1

Xerox copy of the pay slip of T. Sekar for the month of February . 2005 wait list No. 395 ofMadurai Circle W3 24-4-91

W19 13-02-95 Xerox copy of Madurai Module Circular letter about . Engaging temporary employees formthe panel of wait list Xerox copy of the circular of Respondent/Bankto all Branches regarding absorption of daily wagers in Messenger vacancies .

W20 09-11-92

01-05-91 Xerox copy of the advertisement in The Hindu on daily Wages based on Ex .W4.

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

W5 20-08-91

W21 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

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

W22 07-02-06

15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up to vacancies of messenger 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 .

W23 07-02-06

Xerox copy of the circular of Respondent/ Bank to all Branches regarding indentification of massenger vacancies and filling thembefore 31-3-97.

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

W8 Nil

W24 31-12-85

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

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

W9 08-08-88 Xerox copy of the service certificate issued by Tiruchengodu Branch.

For the Respondent/Management :---

W10 Nil

Ex. No. Date

Description

M1 17-11-87 Xerox copy of the settlement .

M2 16-07-88 Xerox copy of the settlement .

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

M3 27-10-88 Xerox copy of the settlement .

W11 Nil

M4 09-01-91 Xerox copy of the settlement .

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

M5 30-07-96 Xerox copy of the settlement .

W12 06-03-97

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

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

M7 28-05-91

W13 06-03-97

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

W14 06-03-97

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

M9 10-07-99

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

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

W15 17-03-97

M10 Nil

Xerox copy of the service particulars- J. Velmurugan

Xerox copy of the wait list of Coimbatore Module.

W16 26-03-97 Xerox copy of the letter advising selection of part time Menial-G. Pandi

25-10-99

M11

W17 31-03-97

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

Xerox copy of the appointment order to Sri .G. Pandi 6835 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

नईदिल्ली , 20 अगस्त, 2007

the dispute on its file as CGID No. 38/99 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. 20/2004 .

का.आ. 2560. 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 20/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/297/1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th August, 2007

"Whether the demand of the workman Shri M. Kamaraj , wait list No. 320 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. 2560.- 1n pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 20/ 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 20-8-2007 .

[No. L- 12012/297/ 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. 20/2004

[Principal Labour Court CGID No. 38/99 ]

(Inthe matter of the dispute for adjudiation under clause(d) ofsub -section (1) and sub-section 2(A) of Section10 of the Industrial Disputes Act, 1947 ( 14 of 1947), between the Management of State Bank of India and their workmen)

BETWEEN

: 1 Party/Petitioner

Sri N. Mariyappan

AND

The Assistant General Manager, 11 Party/Management State Bank of India , Region - 1 , Coimbatore .

APPEARANCES

: Sri V. S. Ekambaram, Authorised Representative .

: M/s . K. S. Sundar , Advocates

For the Petitioner For the Management

AWARD

1. The Central Government Ministry of Labour , vide Order No. L - 12012/ 297 /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 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 Bhavani Main branch from September, 1982. 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 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 additionto 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 whowere 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 through Branch Manager of Bhavani MainBranch. 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 the year 1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working as such, another advertisement by the Respondent/Bank was made regarding casual workers who were reported tobe in service during the same period . While the Petitioner was working at Bhavani Main Branch , 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 1-4-97. Hence, the Petitioner raised a dispute 6836

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[PART II-SEC. 3 ( ii) ] 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 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 Sections 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 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 Sections 18( 1 ) and 18 (3 ) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is 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 17-11-1987 ,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. 243 in waitlist ofZonal 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 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 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 705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 243 , 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 applyto 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 [ भाग II-खण्ड 3 ( ii) ]

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 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 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 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 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. 320 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

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(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 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 Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concemed 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 retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 ( ii) ] 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 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.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 . 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, 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 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 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 thatthe 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 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 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 Articles 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 beenprepared asper instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released / published even after theCourt order in WMP No. 11932/91 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. M1 was not produced at the time of conciliation proceedings heldduring 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 itas 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 6839 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

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 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 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 theSupreme 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.

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 employworkmen 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 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 willbe -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 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/ 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. I 1932/91 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 . 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

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II -SEC . 3 ( ii )]

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 ifthere 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, 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 .

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 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 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 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 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 ofmala 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 К.С.Р. 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 1.D. Act and ( ii ) those arrived at in the course of conciliation proceedings under section 18(3 ). A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended

[ भाग II-खण्ड 3 ( ii) ]

workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading andi 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 VAIN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAI . 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 itcannot look intc) 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 pedant ic 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 Su preme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of refere nce should not be construed in the manner which woul'd 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 thesedecisions , the representative for the F'etitioner argued that though in the reference , it is not men ti oned 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 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 argur nent advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13. I find som e 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 Responde /Bank and Federation and since it is not questioned by an y of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

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 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 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 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 comingto 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 6842

[PART II-SEC . 3 (ii) ) THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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 .

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 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, 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. 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

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 , 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 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 [ भाग II-खण्ड 3( ii) ]

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 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 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 regülarised 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 fo 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.

6843

भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17, 1929

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 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 similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hende , 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.

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 atemporary 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 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:-

For the Petitioner

WW1 Sri N. Mariappan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri S.Srinivasan 6844

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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 .

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 messnger 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.

W8 Nil

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

W9 08-10-83 Xerox copy of the service certificate issued by Bhavani Branch .

W10 14-10-97 Xerox copy of the service certificate issued by Bhavani Branch.

W11 Nil

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

W12 Nil

Xerox copy of the Vol . III of Reference book on Staff maters 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 of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

[PART II -SEC . 3 ( ii) ] W16 17-03-97 Xerox copy of the service particulars- J. Velmurugan.

W17 26-03-97 Xerox copy of the letter advising selection ofpart time Mennial-G. Pandi .

W18 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February , 2005 wait list No. 395 ofMadurai Circle.

W20 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

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 theBipartite meeting.

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 part time 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 .

W 25 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 16-7-88 Xerox copy of the settlement .

M3 27-10-88 Xerox copy of the settlement .

M4 9-01-91 Xeгox copy of the settlement .

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings .

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-7-99 Xerox copy of the order of Supreme Court inSLP No. 3082/99.

M10 Nil

Xerox copy of the wait list of Coimbatore Module .

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

6845 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

नईदिल्ली , 20 अगस्त, 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. 136/2004.

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

का.आ. 2561. 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 136/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-08-2007 को प्राप्त हुआ था ।

[सं. एल -12012/417/1998- आईआर(बी -1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 20th August , 2007

"Whether the demand of the workman Shri A. Sadasivam wait list No. 577 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. 2561. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 136/ 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 20-08-2007 .

[No. L - 12012/417 / 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. 136/2004 (Principal Labour Court CGID No. 134/99)

(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 workmen . )

BETWEEN

Shri . A. Sadasivam

: 1 Party/Petitioner

AND

The Assistant General Manager , II Party/Management State Bank of India , Region - I Trichirapalli .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram ,

Authorised Representative

: M/ s . K. S. Sundar ,

For the Management

Advocate

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/ 417/ 98 - IR ( B - I ) dated 11-02-1999 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. 134/99 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 Kattumannar Koil branch from 11-01-1982 . 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 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 Kattumannar Koil 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 11-01-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Kattumannar Koil 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 1-4-1997 . Hence , the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure, 6846

THE GAZETTE OF INDIA: SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II-SEC . 3 ( ii) ] the matter was referred to this Tribunał 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/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 absorhing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 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 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 againsı this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question 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 positioneddown 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 , 16-7-1988 , 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. 577 in wait list ofZonal Office , Trichy . So far 212 wait listed temporary candidates , out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave 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 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 evern 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 , outof 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 577 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 6847

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

[ 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules 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 maybe 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. 577 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

3625 GI/07-37

(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 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 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 toprotect the legal and constitutional rights of the workmen concernedand 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 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 : SEPTEMBER 8 , 2007/BHADRA 17,1929

[PART II-SEC. 3 (ii )]

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 forthe benefit of the workmen to whom Section 25F applies butfor 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 . Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause I of Ex . MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B & C ' is quite opposed to the doctrine of ' last come first go' or ' first come- last go ' and therefore , the categorization inClause I 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 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 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 weregiven 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, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 . 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras

circle since the High Court order is there , but he has not produced any document in support of the so- called non- inclusion except his bald statement . Further , according 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 thatthe 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 ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality 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 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 industry wise 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.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 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 ofconciliation 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 6849 भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17, 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 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther 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 whereinthe 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 and they are in age group of 40 to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

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 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 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 incase, 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, 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 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 6850

[PART II SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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 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 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 fairand 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 Numbergiven 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 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 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 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/ 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 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 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 . " 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 6851 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17, 1929

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 thematerial 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 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 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 . retrenchedfrom the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and candecidewhether 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.

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 is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy. " In that case , pruning of select list on reduction in 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 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 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 thedate namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS whereinthe 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 6852

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[PART II SEC. 3( ii)]

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 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 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 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 humb 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 IISCC I 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 irreguíarly 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 in the Respondent/Bank . Further , he relied on the rulings [ भाग II- खण्ड 3 ( ii ) ]

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 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 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 Government 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 thepreparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

6853

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

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 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 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 mustbe considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against thePetitioner .

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him. No Costs .

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him, corrected and pronounced by me in the open court on this day the 31st January , 2007) .

K. JAYARAMAN , Presiding Officer Witnesses Examined:

Forthe Petitioner WW ] Sri A. Sadasivam WW2 Sri.V. S. Ekambaram For the Respondent

MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj [PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA: SEPTEMBER 8 , 2007/BHADRA 17, 1929

6854

31-03-97

W17

Documents Marked :-

Xerox copy of the appointment order to Sri G. Pandi

Ex . No. Date

Description

Feb. 2005

W18

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

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

W2 20-4-88

13-02-95

W19

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

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

W3 24-4-91

09-11-92

W20

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

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

W4 1-05-91

W21 09-07-92

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

Xerox copy of the minutes of the Bipartite meeting.

W5 20-08-91

09-07-92

W22

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

W6 15-3-97

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

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

W23 07-02-06

W7 25-3-97

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

31-12-85

W24

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 local Head office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management :-

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

Ex . No. Date

Description

W9 19-10-82

Xerox copy of the service certificate issued by Kattumannarkoil branch .

Xerox copy of the settlement .

17-11-87

W10 Nil

Xerox copy of the settlement.

16-07-88

Xerox copy of the settlement.

27-10-88

Xerox copy of the settlement .

09-01-91

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

Xerox copy of the settlement .

30-07-96

W11 Nil

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

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

M7 28-05-91

06-03-97

W12

Xerox copy of the order in W.P. No.7872/91.

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

15-05-98

06-03-97

W13

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court inSLP No. 3082/99 .

06-03-97

W14

M10 Nil

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

Xerox copy of the wait list of Trichy Module .

17-03-97

W15

25-10-99

M11

Xerox copy of the service particulars-- J. Velmurugan

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

26-03-97

W16

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

6855 [ भाग II- खण्ड 3 ( ii) ]

भारत का राजपत्र सितम्बर 8 , 2007/भाद्र 17 , 1929

नई दिल्ली, 20 अगस्त, 2007

thedispute on its file as CGID No. 73/99 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. 25/2004 .

का.आ. 2562.-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 25/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/268/1998- आईआर ( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 20th August , 2007

"Whether the demand of the workman Shri S. Velusamy , wait list No. 252 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. 2562.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 25/ 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 20-8-2007 .

[No. L- 12012/268 /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. 25/2004

[Principal Labour Court CGID No. 73/99 ]

(Inthe matter of the dispute for adjudiation 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

I Party/Petitioner

Sri S. Velusamy

AND

The Assistant General Manager , II Party/Management State Bank of India, Zonal Office , Coimbatore.

APPEARANCES

Forthe 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 Thennambalayam ADB branch from 23-05-85 . 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 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 whowere denied employment after 1985-86 were classified inthe 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 through Branch Manager of the Thennambalayam 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 some times performing work in other branches also . While working on temporary basis inThennambalayam 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 1. The Central Government Ministry of Labour, vide Order No. L- 12012/268/ 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

3625 G1/07-38 6856

THE GAZETTE OF INDIA : SEPTEMBER 8,2007/BHADRA 17, 1929

[PART II-SEC . 3 ( ii) ] required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regardto 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 settlemen't 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 & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522( 4 ) of Sastry Award . Eventhough 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 himtowork 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 .

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 ) 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. 252 in waitlist ofZonal 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 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 705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 252 , 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.

6857 भारत का राजपत्र : सितम्बर 8 , 2007 / भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii) ]

justified?"

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

PointNo. 1 :

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 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 list for the appointment oftemporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with 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 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 Barik 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 . 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 .

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 deliberatelly delayed in filling up the vacancies by the wait listed work men with ulterior motive . The Respondent/Bank hasbeen ar bitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fanciess . 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules 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 ofth e Petitioner . Hence , the Petitioner prays that an award may be passed in his favour .

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

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

Sections 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 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 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 MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . 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 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 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. 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 . Even MW1 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

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

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 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 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 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 to50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed. In such circumstances , this Tribunal has to pass anaward 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 bona fide and 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 employworkmen 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 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 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/ 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 , 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 . Ml to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme. In the 6860

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

[PART II-SEC. 3 (ii )]

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 ifthere 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 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is 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 Number 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 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 .

are made with ulterior motive . Further , they have concealed the material facts that the Peitioner 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 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 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 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 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 1.D. Act and ( ii ) those arrived at in the course of conciliation proceedings under Section 18( 3 ) . A settlement of the first category has limited application andbinds merely parties to it and settlement of the second

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defects in the wording of reference, subjecting the poor workmanto hardship involved in moving the machinery again." It further held that " the Tribunal should look into the pleading and find out the exact 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 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 of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported inAIR 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 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 .

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 isnot questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement.

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 viewof 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 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 comingto 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 [PART II-SEC. 3 (ii ) ] 6862

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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 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 .

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 moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical actbut 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 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 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

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 ofpurportedperiod of probation would not arise . " Further, inCDJ 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 oftheConstitution 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 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 wait list preparedby 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 .

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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 settleinent was not abona 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 ofthe Respondent /Bank .

18. Further, the representative for the Petitioner contended 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 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 ofthe Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore, I find this point against the Petitioner.

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary 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 , corrected and pronounced by me in the open court on this daythe 31st January, 2007.)

K. JAYARAMAN , Presiding Officer Witnesses Examined:-

For the Petitioner WW1 Sri S. Velusamy WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan 6864

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

Documents Marked :-

Ex. No. Date

Description

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

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 messnger 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 casuals not to be engaged at office /branches to do messengerial work.

W9 30-04-86 Xerox copy of the service certificate issued by Thennambayalam Branch .

W10 Nil Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

WII Nil Xerox copy ofthe Vol . III of Reference book on Staff maters upto 31-12-95 .

06-03-97

W12

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

06-03-97

W13

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

06-03-97

W14

Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan. 17-03-97

W15

Xerox copy of the service particulars- J.Velmurugan.

[PART II-SEC . 3(ii )] W16 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

31-03-97

W17

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

Feb. 2005

W18

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

13-02-95

W19

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

W20 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messeinger staff.

09-07-92

W21

Xerox copy of the minutes ofthe Bipartite meeting.

09-07-92

W22

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

W23

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

31-12-85

W24

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

For theRespondent/Management :-

Ex. No. Date

Description

Xerox copy of the settlement .

17-11-87

Xerox copy of the settlement .

16-7-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

9-01-91

30-07-96 Xerox copy of the settlement .

M6 9-06-95 Xerox copy of the minutes ofconciliation proceedings.

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-7-99 Xeгox copy ofthe order ofSupreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list ofCoimbatore Module.

25-10-99

M11

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

6865

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[ भाग II-खण्ड 3 (ii) ]

नई दिल्ली , 20 अगस्त, 2007

thedispute on its file as CGID No. 133/99 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. 135/2004.

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

का.आ. 2563. 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 135/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

[फा. सं. एल -12012/422/ 1998 - आईआर ( बी-1 ) ]

अजय कुमार, डेस्क अधिकारी

New Delhi , the 20th August, 2007

"Whether the demand of the workman Shri P. Manohar , wait list No. 287 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. 2563. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the Award (Ref. No. 135/ 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 20-8-2007 .

[No. L- 12012/422/ 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. 135/2004

[Principal Labour Court CGID No. 133/99 ]

[Inthe matter of the dispute for adjudication under clause (d) of sub - section ( 1 ) and sub - section 2(A) of Section10 of the Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen ]

BETWEEN

Sri P. Manohar

: 1 Party/Petitioner

AND

The Assistant General Manager , : II Party/Management State Bank of India , Region - I , Trichirapalli.

APPEARANCES

: Sri V. S. Ekambaram,

Forthe Petitioner

Authorised Representative .

: M/s . K.S. Sundar , Advocates

For the Management

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 Srirangam branch from 14-09-1984. 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 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 Srirangam 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 14-09-1984, the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Srirangam 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 d

required any more and he need not attend the office 1-4-97 . Hence , the Petitioner raised a dispute with regar 1. The Central Government, Ministry ofLabour , vide Order No. L- 12012 /422/98 - IR (B - I) dated 11-02-1999 has referred this dispute earlier to the Tarnil Nadu Principal Labour Court , Chennai and the said Labour Court has taken 6866

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[PART II-SEC. 3 (ii) ]

17-11-1987,16-07-1988, 07-10-1988,9-1-1991 and 30-7-1996.

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 notmerit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action innot absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait 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 himtowork 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 praysto 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 settlementdrawn under provisions of Sections 18 (1 ) and 18 (3 ) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bonafide 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 dutles 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

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. 287 in waitlist ofZonal Office, Trichy. So far 212 wait listed temporary candidates , out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave 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 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 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 287, he was not appointed. The said settlements were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to 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 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

6867

Point No. 1 :

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 ofdaily 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 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 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 Coust to protect the legal and constitutional rights ofthe 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 . 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3) of the Act . As per recruitment rules 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 theRespondent/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. 287 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 ? "

6868

contended that in 1996 LAB & IC 2248 CENTRAL BANK 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 werepaid scalewages 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 per deposition of MW 1 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 ofArticles 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 inEx. 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 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. 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 Tribunał 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. 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 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.Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . MI deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of ' A , B & C ' is quite opposed to the doctrine of ' last come -- first go ' or ' first come last go' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex. M1 provides an opportunity to persons who were engaged on casual basis and allowedto 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 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 . 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 MWI wait list under Ex .

6869

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[ भाग II-खण्ड 3 ( ii) ]

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 of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther 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 daysin 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 40to50years 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 anaward 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 are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 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 length of his engagement and could not be absorbed as he 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 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 "toemployworkmen 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 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. 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 documentary evidence in support of the averment and also forthe 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 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 onlywith 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 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 . 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 6870

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[PART II-SEC . 3( ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms ofthe 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 thefree will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment offacts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate Governemnt 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 Number 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/ 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 werebonafide 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 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. 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 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 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 unionfrom 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 ihe 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 К.С.Р. 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 1.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18( 3) . A settlement of the first category has limited application andbinds 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

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

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 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 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, 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 .

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 .

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 ofbottom 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 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 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 theyhad cometo an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division 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 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 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

3625 G1/07-40 6872

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[PART II-SEC . 3 ( ii) ]

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 inrecent 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 ofhis employment. He accepts the employment with open eyes . It may be true that he is not in a positionto 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 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 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 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 ofappointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it 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 againsı 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 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 , [ भाग II--- खण्ड 3( ii) ]

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 " 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 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 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 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 ofwait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner .

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settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation, fraud or even 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, 1 find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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 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 , 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.

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 , 1 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 WW1 Sri P. Manoharan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj 6874

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 / BHADRA 17 , 1929

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

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 filing up of vacancies of messnger 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.

W8 Nil Xerox copy of the instructions in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work .

W9 Ni

Xerox copy of the service certificate issued by Srirangam Branch .

W10 Na Xerox copy of the service certificate issued by Srirangam Branch .

Wil Nil

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

W12 Nil

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

W 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V . Muralikannan .

W14 05-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K . Subburaj .

10-03 97

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

[PART II-SEC . 3 ( ii) ] W16 17-03-97 Xerox copy of the service particulars- J. Velmurugan .

26-03-97

W17

Xerox copy of the letter advisting selection ofpart 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 of Madurai Circle .

13-02-95

W20

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

W21 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of niessenger staff.

W22 09-07-92 Xerox copy ofthe minutes ofthe Bipartite meeting.

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 part time general attendants .

07-02-06

W24

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.

Xerox copy of the settlement .

17-11-87

Xerox copy of the settlement. 16-7-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

9-01-91

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xerox copy of the minutes ofconciliation proceedings .

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-7-99 Xerox copy ofthe order of Supreme Court inSLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list of Trichy 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) ]

नई दिल्ली, 20 अगस्त, 2007

का.आ. 2564.-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 145/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2004 को प्राप्त हुआ था ।

[सं. एल -12012/425/ 1998- आई आर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 20th August, 2007

S.O. 2564.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 145/ 2004) of the Central Government Industrial Tribunal - cum- Laour 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 20-8-2007.

[No. L- 12012/425 / 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. 145/2004 (Principal Labour Court CGID No. 153/99 ) [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

Sri G. Mathivanan

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Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 153/99 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. 145/2004.

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

"Whether the demand of the workman Shri G. Mathivanan , wait list No. 484 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 StateBank of India, Region - I Trichirapalli.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative

: M/s . K. S. Sundar, For the Management

Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L - 12012 / 425/ 98 - IR (B - I ) dated 11-02-1999 has referred this dispute earlier to the Tamil Nadu Principal 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 Lalgudi branch from 10-03-1988. 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 Lalgudi 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 10-3-1988 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Rock Fort city 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 6876

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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 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 Sections 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. 10 the temporary workmen which amountsto 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 .

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 engagementement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement. The settlementdrawn under provisions of Sections 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 bonafide 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. 484 in waitlist ofZonal Office , Trichy . So far 212 wait listed temporary candidates, out of 652 wait listed temporary employees were permanently appointedby Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was 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 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 484 he was otappointed. The said settlements were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to 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 [भाग II-खण्ड 3 ( ii) ]

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 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 .

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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 ( 3 ) of the Act . As per recruitment rules ofthe Respondent/Bank, recruitment of class IV staff in the Respondent /Bank is in accordance with the instructions laid down under codified circulars of the 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. 484 for restoring the wait list of temporary messengers . In the Respondent / Bank and consequential appointment thereupon as temporary messenger is justified?"

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भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 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 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 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 . 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 furtherprayed for reinstatement with back wages and other attendant benefits .

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees ...theRespondent/ Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and 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 1.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 6878

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

[PART II-SEC . 3 (ii)] 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 the1.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 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 issuedfrom 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 MWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause I of Ex. MI deals with categorization of retrenched temporary employees into 'A, B and C ' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go' or ' first come last go ' and therefore , the categorization in Clause 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 , 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 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 itis mentioned in Ex . M10 that it was prepared based on thesettlement 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 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 itsorder 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 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 to wriggle 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 per deposition of MWI wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different anddistinct 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/ 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 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 . 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 afterthe settlement on absorption of temporary employees , 6879 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

[ भाग II-खण्ड 3 ( ii) ]

was impleinented only in the year 2001 and it constitutes postreference 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 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 of the 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 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 onlywhen 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 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 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 aremade with ulterior motive . Further , they have concealed the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo) 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 suchfor 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 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 willbe 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 , 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 ofconciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 ( 3 ) settlement as claimed by the 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 of management witnesses during the cross examination had become apparent that they have no personal knowledge aboutthe 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

3625 Gl/07-41 6880

[PART II-SEC. 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

extended application as it will be binding on all workmen ofthe establishment. Even in case ofthe first category, if the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the 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 offraud, misrepresentation or concealment offacts or even corruption and other inducements , it could be subject matter ofyet 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 Number 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 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 .

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 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 any union and the settlements were bank level settlements `and operate throughout the country . Further , he relied on therulings reported in 19911LLJ 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 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 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 unionfrom scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations ofmala 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 1 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) 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 andbinds merely parties to it and settlement of the second category made with a recognised majority union has

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading andfind 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 notfor 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 cannotgobehind the terms of reference, but that does not mean that it cannot look into the pleadings of parties ." Healso 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 itframed 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 .

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 .

held that "the only question whichfalls 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 ofbottom 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 removedfrom 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 thefact 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 panelfor 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 avacancy 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 waitlist 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 continuedfor 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 6882

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[PART II-SEC . 3 ( ii) ]

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. Hefurther relied on the rulings reported in 1994 3 LLJ (Supp.) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the 1.D.Act retrenchment procedure following principle of' last come-first go' is not mandatory but only directory, on sufficient grounds shown, the employer is permitted to departfrom 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 hasnot established with any evidence that hisjuniors were made permanent by the Respondent/Bank . Any how, ifthe 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 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 employeefor one year, it cannot be presumed that there is needfor 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 ofthe other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be 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 of confirmation ofthese employees whose entry itself was illegal and void isconcerned, 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 initiat entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances, there was no occasion to regularise them or to give them valid confomation. The so called exercise of confirming these employees, therefore, remained a nullity . " " Therefore , learned counsel for the Respondent contended that these teanporary employees were appointed only due to exigencies and they have not appointed against any regular varacy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption 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 " thy are temporary employees working on daily wages . Under these circumstances , their disengagement from service

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 absorbedryular service or made permanentmerely on the strength of such continuance, if the original appointment was not made by following a dueprocess of selection as envisaged by relevant rules. lt 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 wha by the very nature of their appointinent, 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 thathe is not in a position to bargain-not at arms length since he might have been searchingfor 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 whohas 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 employce or a casual wage worker is continued for a time beyond the term ofhis appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original [ भाग II-खण्ड 3 ( ii ) ]

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 purportedperiod 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 Appellantfor 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 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 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 .

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not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation, fraud or even corruption 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 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.

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 the31st January , 2007. )

K. JAYARAMAN , Presiding Officer Witnesses Examined :

Forthe Petitioner WWI Sri G. Mathivanan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

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 Respondent/Bank for implementation of Ex . M1 6884

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

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 to 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.

W8 Nil

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

W9 27-04-93 Xerox copy of the service certificate issued by Lalgudi Branch .

W10 27-04-93 Xerox copy of the service certificate issued by Lalgudi beanch .

14-06-93

W11

Xerox copy of the service certificate issued by Tituchirapalli Town branch 02-03-95

W12

Xerox copy of the service certificate issued by Tituchirapalli Town branch .

24-02-97

W13

Xerox copy of the Xerox copy of the Rservice certificate issued by Tituchirapalli town branch .

24-02-97

W14

Xerox copy of the Xerox copy of the Rservice certificate issued by Tituchirapalli Town branch .

17-03-97

W15

Xerox copy of the service certificate issued by Melachinthamani branch 10-11-97

W16

Xerox copy of the service certifiacate issued by Rock Fort city branch .

W17 Nil Xerox copy of the administrative guidelines in ference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions.

W18 Nil Xerox copy ofthe Vol. 111 of Reference book on Staff matters up to 31-12-95 .

06-03-97

W19

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

06-03-93

W20

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

[PART II- SEC . 3 (ii)] W21 06-03-97 Xerox copy ofthe call letter from Madurai zonal office For interview of messenger Post-J. Velmurugan.

17-03-97

W22

Xerox copy of the service particular-J. Velmurugan.

W23 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

31-03-97

W24

Xerox copy of the appointment order to Sri G. Pand . in subordinate cadre .

Feb. 2005

W25

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

W26 13-02095 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 ofthe minutes ofthe Bipartite meeting.

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. 07-2-06

W30

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

31-12-85

W31

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

For theRespondent/Management :-

Ex. No. Date

Description

M1 17-11-87 Xerox copy of the settlement .

Xerox copy of the settlement .

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 .

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 of High Court of Orissa .

M9 10-07-99 Xerox copy ofthe order ofSupreme Court in SLP No. 3082/99 .

Nil

M10

Xerox copy of the wait list of Trichy 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) ]

नई दिल्ली, 20 अगस्त , 2007

का.आ. 2565. 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 144/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था । [सं. एल-12012/ 285/1998- आईआर( बी -1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 20th August, 2007

S.O. 2565. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 144/ 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 20-8-2007 .

[No. L - 12012/285 / 1998-1R ( 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. 144/2004

[Principal Labour Court CGID No. 146/99 ] [In the matter ofthe dispute for adjudication under clause (d) of sub- section ( 1 ) and sub- section 2(A) of Section 10 of theIndustrial Disputes Act, 1947 ( 14 of 1947 ), between the Management of State Bank of India and their workmen ]

BETWEEN

Sri P. Natarajan

6885

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

Labour Court , Chennai and the said Labour Court has taken thedispute on its file as CGID No. 146/99 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. 144/2004 .

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

" Whether the demand of the workman Shri P. Natarajan, wait list No. 629 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:

: 1 Party/Petitioner

AND

The Assistant General Manager , II Party/Management State Bank of India , Region - I , Trichirapalli.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative.

For the Management : M/s . F. B. Benjamin George , Advocate

AWARD

1. The Central Government, Ministry of Labour, vide OrderNo. L - 12012/285/98 - IR (B - I ) dated 11-02-1999 has referred this dispute earlier to the Tamil Nadu Principal 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 Kattur ADB branch from February , 1988. 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 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 Kattur ADB 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 February, 1988 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Trichirapalli Town 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) ] 6886

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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 inerit consideration . The Petitioner was not a party to the settlement nientioned 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 & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award. Eventhough the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been Regularising according to their whins and fancies . The respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which 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 hiin 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 and 30-7-1996 . 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. 629 in waitlist ofZonal Office , Trichy. So far 212 wait listed temporary candidates, out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 629 , 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 .

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 thuse employees who are claiming permanent absorption and 6887 भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17, 1929

[ भाग II-खण्ड 3 ( ii) ]

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

Point No. 1 :

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 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 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 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 toprotect the legal and constitutional rights of the workmen concemed 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 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 .

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 inthe 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 listedworkmen 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 that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18( 3 ) of the Act . As per recruitment rules 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 theRespondent/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 :----

3625 GI/07-42 6888

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

[PART II-SEC. 3 (ii) ] 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 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 asEx. M8 which constitute /relate to the circular instractions 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 . MI deals with categorization ofretrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come- first go ' or ' first come last go ' and therefore, the categorization in Clause I is illegal . Clause 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 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. 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 wasprepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in

support of the so called non - inclusion except his bald statement . Further, according to MWI wait list under Ex. M10 wasprepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Furtherthe 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 whowere 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 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 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 matterofabsorption. Therefore, it is violative ofArticles 14 & 16 of Constitution ofIndia . 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 beenprepared 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 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 daysput 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 wasnot 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 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

6889

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 Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther 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 daysin 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 40to50 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 .

engaged in leave vacancy was used as a device to take them out ofthe 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 employworkmen 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 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 thrat 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 claimed by the Respondent/Bank which says onlywith 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 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 was implemented only in the year 2001

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

[PART II SEC . 3 (ii) ]

extended application as it will be binding on all workmen ofthe establishment . Even in case of thefirst category , if the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by thefree 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 offraud, misrepresentation or concealment offacts or even corruption and other inducements , it could be subject- matter of yet another industrial dispute which an appropriate Governemnt 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 contendedthat though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number 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 reinstater . in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Governmen . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 ofreference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints ofdifference are discerniblefrom the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor the material facts that the Petitioner was wait listed as per length ofhis 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 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 rulingsreported 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 seulement 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 where in the Division Bench of the Bombay High Court has held that "therefore a settlement arrivedat 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 aminority unionfrom scuttling the settlement. " It further held that " there may be exceptional cases , where there may be allegations ofmala 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 К.С.Р. LTD . VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided intovo categories namely (i) those arrived al outside the conciliation proceedings under Section 18( 1 ) of the 1.2. 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 andbinds merely parties to it and settlement ofthe second category made with a recognised majority union has 6891 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17, 1929

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 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 LABIC 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, 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 mehtioned 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 isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy . " In that case, 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 ofbottom 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 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 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 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 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 contendedthat 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 narnely 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 6892

THE GAZETTE OF INDIA : SEPTEMBER 8, 2007 /BHADRA 17, 1929

[PART II-SEC. 3( ii)]

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 .

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 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 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 11 SCC I 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 ofsanctioned posts . "So far as the question of confirmation of these employees whose entry itselfwas 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 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 1.D. Act . The concept of retrenchment therefore , cannot be stretched to

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 onthat ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so, it will be creating another mode of public appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant 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 [भाग II-खण्ड 3 ( ii ) ]

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 Supreme Court has heldthat " 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 ofthe 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 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 ofwait list or number allotted to them . Under such circumstances , itcannot be questioned by the Petitioner.

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

6893 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 .

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.

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 P. Natarajan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Ex.No. Date

Description

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

[PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17, 1929

6894

31-03-97

W19

W2 20-04-88

Xerox copy ofthe appointment order to Sri G. Pandi.

Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex .MI .

Feb. 2005

W20

W3 24-04-91

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

13-02-95

W21

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 Madurai Module Circular letter about engaging temporary employees from the panel ofwait 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 sanction of messenger staff.

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

09-07-92

W23

W6 15-03-97

Xerox copy ofthe minutes ofthe Bipartite meeting.

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

09-07-92

W24

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 .

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

07-02-06

W25

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 instructions in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work .

31-12-85

W26

W9 22-11-97 Xerox copy of the service certificate issued by Kattur ADB Branch .

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

24-11-97

W10

For the Respondent/Management :---

Xerox copy of the service certificate issued by Lalgudi Branch .

Ex. No. Date

Description

21-05-98

W11

Xerox copy of the settlement .

MI 17-11-87

Xerox copy of the service certificate issued by Tiruchirapalli Town Branch .

Xerox copy of the settlement .

W12 Nil

M2 16-7-88

Xerox copy of the settlement .

M3 27-10-88

Xerox copy of the settlement .

9-01-91

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.

30-07-96

W13 Nil

Xerox copy of the Vol . III of Reference book on Staff matters upto 31-12-95 .

9-06-95 Xerox copy ofthe minutes of conciliation proceedings.

06-03-97

W14

M7 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 .

06-03-97

W15

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

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

M9 10-07-99

06-03-97

W16

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

M10 Nil

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

Xerox copy of the wait list of Trichy Module.

17-03-97

W17

Xerox copy of the service particulars- J. Velmurugan.

25-10-99

M11

26-03-97

W18

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

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

[भाग II-खण्ड 3 ( ii ) ]

नई दिल्ली, 20 अगस्त, 2007

का.आ. 2566. औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार एस.ई.सी.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , जबलपुर के पंचाट ( संदर्भ संख्या 122/1998 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-07 को प्राप्त हुआ था । [सं. एल-22012/ 14/1997- आईआर ( सी- II ) ]

अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 20th August , 2007

S.O. 2566. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 122/1998 ) of the Central Government Industrial Tribunal- Cum-Labour Court , Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SECL and their workman, was which received by the Central Government on 17-8-2007 .

[No. L -22012/14/ 1997- IR (C - II )] AJAY KUMAR GAUR, Desk Officer

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

No. CGIT/LC/R/ 122/ 98

Presiding Officer: Shri C. M. Singh VicePresident, Koyla Mazdoor Sabha , Hasdeo Area, Shastri Nagar,

Post: Jhimar Colliery,

Union/workmen Distt: stt : Shahdol (MP)

Versus

Management Sub Area Manager , Kurja Sub Area of S.E.C.L. , Post: Bijuri , Distt: stt: Shahdol (MP)

AWARD

Passed on this 15th day of June , 2007 1. The Government of India , Ministry of Labour vide its Notification No. L-22012 / 14 /97 - IR (CM - II) dated 22/25-05-98 has referred the following dispute for adjudication by this Tribunal :---

"Whether the action of the Sub Area Manager, Khurja Sub Area of SECL , Hasdeo Area in not paying difference ofwages / acting allowance and not regularising S/Sh . Sambhu S/ o Sriram , Alamgiri S/ o Rasul , Mohita S/ o Mohanlal, Manoj S / o Chhanga and Ravi S /o Nathu as SDL Operators is legal and justi fialed if notm what relief the workman were entitled ? "

2. Vide order dated 14-06-07 passed on the order sheet of this reference proceeding , the reference proceeded exparte against workmen/union .

3. No Statement of Claim has been filed on behalf of workmen/union . Likewise no Written Statement has been filed on behalf ofmanagement .

3625-611-7-43

6895

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

There is no evidence of the parties on record.

4. 5. I have heard Shri A.K. Shashi , Advocate , the learned counsel for the management .

6. It is a no evidence case . The workmen/union thus have failed to prove their case . Therefore the referencc deserve to be decided in favour of management and against the workmen/union . Having considered the facts and circumstances of the case , I am of the view that the parties should be directed to bear their own costs in this reference .

7. In view of the above the reference is decided in favour ofmanagement and against the workmen/ union Shri Shambhu and 4 others holding that the action of the Sub Area Manager, Khurja Sub Area of SECL , Hasdeo Area in not paying defference of wages / acting allowance and not regularising S /Shri Shambhu S/o Sriram , Alamgiri S/o Rasul , Mohita S/ o Mohanlal, Manoj S/ o Chhanga and Ravi S /o Nathu as SDL Operators is legal and justified . Consequently the workmen are not entitled to any relief. The parties shall bear their own costs of this reference .

8. Copy of the award be sent to the Government of India, Ministry of Labour as per rules .

C. M. SINGH, Presiding Officer नई दिल्ली, 20 अगस्त, 2007

औद्योगिक विवाद अधिनियम, 1947 ( 1947 का.आ. 2567. का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार एस. ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , जबलपुर के पंचाट ( संदर्भ संख्या 37/2002) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-07 को प्राप्त हुआ था । [सं. एल -22012/106/2001- आईआर ( सीएम -11 ) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi, the 20th August, 2007

S.O. 2567. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. 37/2002 ) of the Cent . Govt . Indus . Tribunal- Cum- Labour Court, Jabalpur as shown in the Annexure in the Industrial Dispute between the management of SECL, Kusumunda Project , and their workmen , received by the Central Government on 20-8-2007.

[No. L -22012/ 106/2001 -IR (CM - II) ] AJAY KUMAR GAUR, Desk Officer ANNEXURE

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

Union/ workmen No. CGIT/LC/R/37/2002 Presiding Officer: Shri C. M. Singh Sh . M.D. Diwan, Vice President, Madhya Pradesh Koyla Shramik Sangh (CITU) , No. M/ 192/, Pump House Colony , P. O. Korba Colliery, Korba -495679 6896

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929

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

The Chief General Manager ,

S.E.C.L. , Kusumunda Area , PO : Kusumunda Colliery,

Distt: Korba (MP) , Korba

Management

AWARD

Sr No. 1 namely Narender Singh and one post was kept vacant for SC Candidates . It may not be out of pace to mention here that Shri Narendra Singh is a ST candidate . The subsequent DPC held on different dates also recommended the name of the remaining candidates for promotion and accordingly vide Office Order No. 3243 dated 04-02-2002 the following poisons were given promotion :-

Passed on this 27th day of June , 2007

1.Nileshwar Singh

2. T. R.Sahu

3. J. R. Markam

1. TheGovernment of India, Ministry ofLabour vide its Notification No.L - 22012/ 106/2001 ( IR ( CM - II) ) dated 21-02-2002 has referred the following dispute for adjudication by this Tribunal :----

"Whether the action of the management of SECL , Kusumunda Area in giving appointment to Shri Narendra Singh S/ o Daud Singh when he was below 18 years of age and subsequently promoting him superceding S/Sh. Mangal Das and 7 others is legal andjustified? If not, to what relief, S/ Sh . Mangal Das and 7 others are entitled to ? "

Itissubmittedthat all the claimant who are in service have been given promotion to the post of Office Supdt . T & S Grade - A as per the recommendations given by the DPC from timeto time . There is no supercession by Shri Narendra Singh as alleged. He was given promotion first as per the recommendations of DPC. It is pleaded in the Written Statement that there is no merit in the present dispute.

4. The management in order to prove their case filed affidavit ofShri Sanjay Kumar , the then working as Senior Personnel Officer in SECL , Kusmunda OCP .

2.Vide orderdated 06-7-05 on the order sheet of this proceeding, the reference proceeded ex- parte against the workmen Sh . Mangal Das and 7 others/ Union as no body put in appearance on behalf of workmen / Union . No statement of claim filed on behalf of workinen/ Union .

5. 1have heared Shri A.K.Shashi , Advocate , learned counsel for the management .

3 ..The management filed their written statement. Their case in brief is as follows :

6. I have very carefully gone through the entire evidence on record .

7. As the case proceeded ex parte against the workmen/union, there is no evidence of workmen/union in support of their case . The case of the management is fully proved from the uncontroverted and unchallenged affidavit ofmanagement's witness Shri Sanjay Kumar . The reference, therefore, deserves to be decided in favour of management and against the workmen/ union. Having considered the facts and circumstances of the case, I am of the view that the parties be directed to bear their own costs of this reference proceeding .

8. In view of the above the reference is decided in favour of the management and against the workmen Shri Mangal Das & 7 others holding that the action of the management of SECL , Kusmunda Area in giving appointment to Shri Narendra Singh S/ o Daud Singh when hewas below 18 years of age and subsequently promoting him superceding S/ Shri Mangal Das and 7 others is legal andjustified. Consequently workmen Shri Mangal Das and 7 others are not entitled to any relief. The parties shall bear their own costs of this reference.

9. Let the copies of the award be sent to the Government of India, Ministry of Labour and Employment as per rules .

C. M. SINGH , Presiding Officer Sh. Narendra Singh was initially appointed as General Mazdoor Cat.-I. w.e.f. 22-11-79 . His appointment was as a land effected person . Subsiquently he was given promotion to the post of Clerical Grade - III in the year 1981 , Clerk Grade- II in the year 1982 , Clerk special Grade in the year 1991 and at present he is working as Office Superintendent since 1999. Workmen Sh . Mangaldas and 7 others were also appointed initially as clerical mazdoor and subsequently they were given promotion at different categories in different dates . The date of birth of Sh . N. Singh accordingto office record is 27-8-62 . A DPC was constituted for considering departmental promotion of Sr. Clerk to the post of Office Superintendent in T & S Gr . A and in respect of Sr. Cashier to the post of Chief Cashier in T& SGr.A. approved by JBCCI promotion to the post of Office Superintendent is done on the basis of merit -cum- seniority by a duly constituted DPC . The experience required for promotion to the post ofOffice Superintendent is 5 years as Special Gr . Clerk/ Sr . Clerk. All the claimants who were working as Sr. Clerk were called for test/interview by DPC in the year 1999 for promotion to the post of Office Supdt . Shri Narendra Singh stood as First in the test/ interview and obtained highest marks i.e. 75 marks on the basisofmerit-cum- seniority as declared by the DPC. That the claimant Shri Mangal Das got 74 marks and therefore he stood second. Shri Laxman Singh got 68 marks therefore he stood 3rd . At the relevant time there were only 2 vacant posts . Therefore, the DPC recommended the name given at [ भाग II- खण्ड 3( ii) ]

6897 भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

नई दिल्ली , 20 अगस्त, 2007

का.आ. 2568.-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 , असनसोल के पंचाट ( संदर्भ संख्या 31/1998 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-22012/ 221/1997- आईआर ( सी- II ) ] अजय कुमार गौड़, डेस्क अधिकारी

New Delhi , the 20th August , 2007

Afterhaving received the Order No. L- 22012/221/97- IR(CM 11) dated 22-07-1998 of the aforesaid reference from the Govt. of India , Ministry of Labour . New Delhi for adjudication of the dispute , a reference Case No. 31 of 1998 wasregistered on 10-08-98 and accordingly an order to that effect was passed to issue notices to the parties concerned through the registered post directing them to appear in the court onthe date fixed and file their written statement along with the relevant documents and a list of witnesses in support of their claims . Pursuant to the said order notices by the registered post were sent to the parties concerned . Sri P.K.Das , Advocate and Sri M. Mukherjee , Advocate appeared in the court to represent the management and the union or the workman concerned respectively.

S.O. 2568. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref . No. 31/1998) of the Central Government Industrial Tribunal- Cum- Labour Court, Asansol as shown in the Annexure in the Industrial Dispute between the employers in relation tothe management of ECL and their workmen , which was received by the Central Government on 17-8-2007.

[No. L-22012/221 /1997 - IR (C- II ) ]

AJAY KUMAR GAUR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOYT . INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT, ASANSOL.

PRESENT: Sri Md . Sarfaraz Khan , Presiding Officer .

REFERENCE NO . 31 OF 1998.

PARTIES: Agent , Modern Satgram Colliery of ECL, Devchandnagar , Burdwan

Vrs.

From perusal of the record it transpires that both the parties filed their written statement in support of their claims . It is further clear from the order sheets of the record that the case was fixed for final hearing on merit of the case on 14-2-06 but both sides prayed for time to get themselves ready for hearing of the case which was allowed fixing next date 19-4-06. The record goes to show that the parties remained absent on that day . It is further clear from the record that w.e.f. 19-4-06 to 14-2-07 no step was taken by the union. The learned lawyer for the union submitted that he has got no instruction frorn the union or workman side and made an endorsement to that effect . So it is apparent that the union or the workman has got no interest in this case and they do not want to proceed further with this record. In the prevailing facts and circurnstance of the case it is not advisable and proper to keep this old record pending any more as no useful purpose is to be served. As such it is hereby

ORDERED

The Organising Secretary, Colliery Mazdoor Sabha , Asansol , Burdwan .

REPRESENTATIVES:

:Sri P. K. Das , Advocate .

For the management

Sri M. Mukherjee , Advocate .

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.

For the union : (Workman) .

INDUSTRY : COAL.

STATE: WEST BENGAL

MD . SARFARAZ KHAN, Presiding Officer नई दिल्ली, 20 अगस्त, 2007

Dated the 31-07-2007

AWARD

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 the Ministry of Labour vide its letter No. L- 22012/ 221/97- IR ( CM - II)) dated 22-07-98 has been pleased dated to refer the following dispute for adjudication by this Tribunal .

का.आ. 2569. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार एफ. सी. आई. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , जबलपुर के पंचाट ( संदर्भ संख्या 139/1998 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

SCHEDULE

[सं. एल-22012/ 261/1997- आईआर ( सी- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 20th August , 2007 "Whether the action of the Management of ECL, Modern Satgram Colliery in dismissing Sh . Chattu Majhi frorn services w.e. f. 6-5-93 is legal and justified? If not, to what relief is the workman entitled ? "

S.O. 2569.- In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central 3625 GI/07-44 6898

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007 /BHADRA 17 , 1929

Government hereby publishes the Award (Ref. No. 139/1998 ) of the Central Government Industrial Tribunal- Cum-Labour Court , Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of FCL and their workmen , which received by the Central Government on 17-8-2007 .

[No. L- 22012/261 / 1997 - IR (C- II ) ] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

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

NO. CGIT/LC/R/ 139/98

PRESIDING OFFICER : SHRI C.M. SINGH

FCI Workers Union , Calcutta The Jt . Secy, FCIWU , 58/1 , Diamond Harbour Road , Calcutta ,

Calcutta .

[PART II-SEC. 3 (ii )) high rates . Since no other alternative was left, therefore , the work was got done through Shri Man Singh , who was head of Labourers already working therein on the same terms and conditions of the contractor . This arrangement continued from 03-04-1994 till 28-02-1995 till now contractor was appointed. Due to continuous pressure/hindrance caused by the Labourers and due to continuous resistance by the then contractors the work under contract was paralyzed. Since no ulternative was available therefore arrangement was made that Shri Dataram & Kesharlal Labourers will carry out the handling work as mukaddam with the help of other Labours . Thus the management carried out the handling and transport work through contractor thus The Food Corporation of India has no employer- employee relationship with the workers engaged by the Labour /Mukaddam. The workmen were not the employees of the management and question their regularization does not arise .

Unjon/workmen

Versus

Sr. Regional Manager,

FCI , Chetak Building ,

M.P.Nagar,

4. The management in order to prove their case filed affidavitof Shri K.B. Gupta, the then Manager ( IRL) , Food Corporation of India, Area Office , Gwalior (MP) .

5. I have heard Shri S.K. Rao , Sr. Advocate for the management. I have very carefully gone through the evidence on record .

Management

Bhopal-462011 .

AWARD

Passed on this 09th day of July -2007 The Government of India , Ministry of Labour vide its Notification No. L- 22012 /261 / 97/ IR ( CM - II ) dated 20-07-1998 has referred the following dispute for adjudication by this tribunal:

"Whether the action of the management of Food Corporation of India in not regularizing 25 food handling workers working in FCI, FSD, Gohad Depot , w.e.f. Jan, 97 is legal & justified ? Ifnot , to what relief are the workers entitled ? "

2.Vide Order dated 22-07-05 the reference proceeded ex-parte against the workmen/union . No statement of claim has been filed on behalf of workmen/union .

3. The management filed their written statement . Their case in brief as follows : ----

The management has taken preliminary objection that the Government of India while referring the dispute vide its order dated 20-7-1998 has not disclose the names of so called handlingworkers and therefore this reference is not maintainable . The Handling work in the godown of the management was being carried out through handling and transport contractor appointed by the management , time to time. Shri Ramkant Kushwaha was appointed as Handling and Transport contractor w.e.f. 03-04-1992 to 02-04-1994 and on expiry of the contract period, he refused to carry outthe work for further period. The subsequent tender for appointment of regular contractor was scrapped due to 6. As the case proceeded ex - parte against the workmen/union no evidence has been adduced for proving their case . Against the above , the case of management is fully proved by the uncontroverted & unchallenged affidavit of management's witness Shri K.B. Gupta . The reference, therefore , deserves to be decided in favour of management and against the workmen/ union . Having considered the facts and circumstances of the case , I am of the view that the parties should bear their own costs of thisreference .

7. In view of the above , the reference is decided in favour of management and against the workmen/union , holding that the action of management of FCI in not regularizing 25 food handling workers working in FCI, FSD , Gohad Depot w.e.f. January , 1997 is legal and justified. Consequently 25 Food handling workers are not entitled to any relief. The parties shall bear their own costs of this reference .

8. Let the copies of this award be sent to the Government of India, Ministry of Labour and Employment, NewDelhi as per rules .

C. M. SINGH, Presiding Officer नई दिल्ली, 20 अगस्त, 2007

का.आ. 2570, औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार एस. ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय 6899 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 8 , 2007/भाद्र 17 , 1929

सरकार औद्योगिक अधिकरण , जबलपुर के पंचाट ( संदर्भ संख्या 162/1997 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-22012/217/1996- आईआर( सी- II ) ]

अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 20th August , 2007.

S.O. 2570. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 162/1997) of the Central Government Industrial Tribunal- Cum- Labour Court , Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SECL and their workmen , which received by the Central Government on 17-8-2007 .

14-02-89 . He was regularised as general mazdoor w.e.f. 01-03-1990 . He was promoted to the post of feeder operator Grade- II w.e.f. 01-7-93 . Due to exhaustion of coal in underground , Vivek Nagar Incline was sealed off and abandoned. Hence the employees deployed in the said mine were adjusted to other units as per requirement . In the aforesaid process workman Shri Govind Prasad was transferred from Vivek Nagar Incline to Vangwar Project of Sohagpur Area and he joined there . The promotion can not be claimed as a matter of right, as it is a managerial function. Promotion is given on various circumstances , such as administrative requirement avail ability of sanctioned post, eligibility of workman concerned , recommendations of DPC etc. The qualification of selection/ promotion to the post of clerical grade III , as per aforesaid cadre scheme is given below:-

Sl .No.

[No. L- 22012/217/ 1996- IR (C- II ) ] AJAY KUMAR GAUR, Desk Officer

Clerk Gr . III

Description

ANNEXURE

Clerical Gr . III

scale of pay

Minimum qualifiacation : (1)Matriculation BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM - LABOUR COURT, JABALPUR

education technical

NO . CGIT/LC/R/ 162/97

PRESIDING OFFICER : SHRI C. M. SINGH

equivalent examination fromany recognised board/examination Secretary, Samyukta Khadan Mazdoor Sangh , VivekNagar Branch ,

Eligibility

Union/workmen

3 years service

for promotion

Post : Amlai Colliery, Distt: Sahdol ( MP)

incompany

Versus

Mode of promotion : Selection/ test

The Sub Area Manager , Chachai Group OfMines ,

PO:Amlai Colliery,

Distt: Sahdol (MP)

Management

The workman was never employed as a clerk nor he was given the job of clerk and therefore he is not eligible for the post of clerk Grade III .

AWARD

Passed on this 29th day of June - 2007

4. The management in order to prove their case filed affidavit of their witness Shri K.A.Sundar , the then working as Dy.Personnel Manager in SECL, Sohagpur Area.

1. The Government of India , Ministry of Labour vide itsNotification No. L- 22012/217/96- IR(C- II) dated 05-06-97 has referred the following dispute for adjudication by this tribunal :

5. I have heard Shri A.K.Shashi , Advocate , learned counsel for the managernent . I have very carefully gone through the entire evidence on record .

"Whether the demand of the Samyukta Khadan Mazdoor Sangh for regularisation of Sh . Govind Prasad , Feeder Operator Cat . II , Viveknagar Incline of SECL, as Clerk Grade - II is legal andjustified ? If so, to what relief is the workman entitled and from which date? "

6.As the case proceeded exparte against workman/ union there is no evidence on record of workman/union for proving the case of workman/union . The case of the management is fully proved from the uncontroverted and unchallenged affidavit of their witness Shri K.A.Sundar . The reference, therefore , deserves to be decided in favour of the management and against the workman/union . Keeping into consideration the facts and circumstances of the case , I am of the view that the parties be directed to bear their own costs of this reference .

2. Order dated 01-8-2005 on the order sheet of this reference proceeding reveals that inspite of sufficient service of notice on the workman/ union no body put in appearance for the workman/ union and no statement of claim has been filed on behalf of workman/ union . The case thus proceeded exparte against workman/union .

3. The management filed their written statement .

Their case in brief is as follows :-

Workman Shri Govind Prasad was initially appointed as piece rated under ground badli Tub Loader w.e.f.

7. In view of the above the reference is decided in favour of the management and against the workman/union holding that the demand of the Samyukta Khadan Mazdoor Sangh for regularisation of Shri Govind Prasad, Feeder Operator , Cat . II , Vivek Nagar Incline of SECL , as clerk grade- 11 is legal and justified. Consequently the workman/ 6900

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17 , 1929 .

union is not entitled to any relief. The parties shall bear their own costs of this reference .

8. Let the copies of this award be sent to the Ministry of Labour and Employment, Government of India , New Delhi as per rules.

C. M. SINGH, Presiding Officer नई दिल्ली, 20 अगस्त, 2007

का.आ. 2571.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार एस. ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , जबलपुर के पंचाट ( संदर्भ संख्या 3/2001 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था । [एल -22012/ 140/2000- आईआर ( सी- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 20th August , 2007

S.O. 2571. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 3/2001 ) of the Central Government Industrial Tribunal- Cum- Labour Court, Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SECL and their workmen , which received by the Central Government on 17-8-2007 .

[No. L-22012/ 140/2000- IR (C- II )] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

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

NO . CGIT/LC/R/3/2001

PRESIDING OFFICER: SHRI C.M.SINGH

Sh . Ganesh Prasad Diwedi ,

Union/workmen Vill : Dhanpura, PO : Bartara, Distt. Shahdol ( MP) Shahdol

Versus

The Sub Area Manager ,

Bungwar Sub Area ,

M/s. South Eastern Coalfields Ltd. PO: Beomahari ,

[PART II-SEC . 3 ( ii) ] Diwedi , Ex- Clip repairer of Bungwar Project w.e.f. 2-4-99 is legal and justified. If not, to what relief the workman is entitled' ? "

2.Vide Order dated 3.07.2007, the reference proceeded exparte against the workman. The workman Sh. Ganesh Prasad Diwedi did not file his statement of claim .

3. Shri A.K. Shashi , Advocate , Counsel for management submitted that the management has not to file any written statement . He further submitted that the management has not to adduce any ex -parte evidence . It is on his request that the ex - parte argument was heard on 17-7-2007 and the reference was closed for award.

4. I have heard Shri A.K.Shashi , Advocate for the management and perused the record .

5. It is a case ofno evidence by the parties . Therefore, the reference deserves to be decided in favour of management and against the workman with no orders as to costs .

6. In view of the above , the reference is decided in favour of management and against the workman with no orders as to costs , holding that the action of the Sub Area Manager, Bungwar Sub Area of SECL, PO: Beomahari , Distt. Shahdol (MP) in dismissing Sh . Ganesh Prasad Diwedi , Ex- Clip repairer ofBungwar Project w.e.f. 2-4-99 is legal and justified . Consequently the workman is not entitled to any relief.

7. Let the copies of this award be sent to the Government of India , Ministry of Labour and Employment, New Delhi as per rules .

C. M. SINGH, Presiding Officer नई दिल्ली , 20 अगस्त, 2007

का.आ. 2572.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार एस. ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , जबलपुर के पंचाटु ( संदर्भ संख्या 12/1995 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-22012/ 134/1993- आईआर ( सी-11 ) ] अजय कुमार गौड़ , डेस्क अधिकारी

Managernent

Distt. Shahdol (MP ) Shahdol

AWARD

Passed on this 26th day of July - 2007 The Government of India, Ministry of Labour vide its Notification No.L - 22012 / 140/2000/IR (CM - II ) dated 08-11-2000 has referred the following dispute for adjudication by this tribunal :-

"Whether the action of the Sub Area Manager , Bungwar Sub Area of SECL , PO : Beomahari , Distt . Shahdol ( MP ) in dismissing Sh . Ganesh Prasad New Delhi , the 20th August , 2007

S.O. 2572.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 12/1995 ) ofthe Central Government Industrial Tribunal - Curn - Labour Court , Jabalpur as shown in the Annexure in the Industrial Dispute between the ernployers in relation to the management of SECL and their workmen , which received bythe Central Government on 17-8-2007 .

[No. L- 22012/ 134/ 1993-1R (C- II) ] AJAY KUMAR GAUR, Desk Officer [भाग II-खण्ड 3 ( ii ) ]

6901

भारत का राजपत्र : सितम्बर 8 , 2007/ भाद्र 17 , 1929

ANNEXURE

has thus acted arbitrarily and maliciously in issuing the said notice , hence the reference :

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

NO . CGIT/LC/R/ 12/ 95

PRESIDING OFFICER : SHRI C.M.SINGH

Secretary,

Rashtriya Koyla Khadan Mazdoor Sangh ( INTUC ) , Chrimiri Chetra,

Chetriya Store Branch ,

PO: Korea Colliery ,

....Union/workmen

Distt: Surguja

Versus

The General Manager,

Chrimiri Area , South Eastern Coalfields Ltd. ,

PO: West Chrimiri Colliery,

3. The management filed their Written Statement. Their case in brief is as follows That contention of the workman that his date of birth is 28-9-1938 is not correct. At the time of his appointment the date of birth of the workman has been recorded as 28-9-1934 in his service sheet which has been prepared after getting information from him . The workman has himself signed in the service book and also put his T.I. as a token of its correctness~ At the time of appointment the workman has also submitted an affidavit wherein his date of birth is mentioned and recorded in his service book . The case of review of date of birth has to be done as per impleamentation of Instruction No. 76 for resolving the dispute of age . The workman has failed to submit any certificate or documents as proof of his claim and as such he is not entitled to any relief.

Distt: Surguja (MP)

....Management

AWARD

Passed on this 27th day of July -200?

4. Vide order dated 05-02-2004 the reference proceeded exparte against the workman, therefore , there is no evidence on record insupport of workman/ unions case .

5. The management in support of their case filed affidavitoftheir witness Shri B.K.Saxena, then working as Material Manager , Regional Store , Korba of SECL .

The Government of India, Ministry of Labour vide its Notification No.L-22012 ( 134)/93 - IR( C11 ) dated 5-1-95 has referred the following dispute for adjudication by this tribunal:-

6. I have heard Shri A.K.Shashi , Advocate for management and perused the evidence on record.

"Whether the action of the management of Korea Colliery of SECL in not changing the date ofbirth of Sh .M.L.Banerjee, Sr. Store Keeper from 23-9-1934 to 28-9-1938 is legal and justified? If not to what relief is the concerned workman entitled to ?"

7. The case of the management is fully proved from the unchallenged and uncontroverted affidavit of their witness Shri B.K.Saxena . Therefore the reference deserves to be decided in favour of the management and against the workman/union . Considering the facts and circumstances ofthe case, I am of the opinion that the parties should be directed to bear their own costs of this reference .

8. In view of the above , the reference is decided in favour of the management and against the workman/union , holding that the action of the management of Korea Colliery of SECL in not changing the date of birth of Sh .M.L.Banerjee, Sr. Store Keeper from 23-9-1934 to 28-9- 1938 is legal and justified. Consequently the workman is not entitled to any relief. The parties shall bear their own costs of this reference proceedings .

9. Let the copies of this award be sent to the Government of India, Ministry of Labour and Employmenı, NewDelhi as per rules .

C. M. SINGH , Presiding Officer नई दिल्ली , 20 अगस्त, 2007

का.आ. 2573. औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार एस. ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , जबलपुर के पंचाट ( संदर्भ संख्या 240/1998 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-07 को प्राप्त हुआ था ।

[सं. एल -22012/583/1996- आईआर(सी एम -11 ) ] अजय कुमार गौड़ , डेस्क अधिकारी 2. The case of workman Shri M.L.Banerjee is as follows--That he migraged from Distt: Dacca, East Pakistan to India in 1954. At the time of this departure from East Pakistan to India his original matriculation certificate was taken away by the Border Officer of East Pakistan alongwith his certain other belongings . On 11-9-1962 he was appointed to the post of Semi Clerk by the management .At the time of his appointment he filed his affidavit with the management stating therein that while he was coming to India from Pakistan the then Security/Border Officer of East Pakistan took away his matriculation certificate . He also stated in his affidavit that his date of birth is 28.9.1938 . During the course of employment with the management finally he was promoted to the post of senior store keeper . From each and every post held by him the minimum educational qualification is matriculation . That for the first tirne the management issued Identity Card to him, then only he came to know about wrong entry of his date of birth in his service record in the year 1991 , i.e. 28-9-1934 . Herepresented the matter with the management . He was also treated by management as non metric and the management did not give any reason as to how his date of birth was wrongly recorded in service book . The management issued notice dated 28/29-09-1993 to hirn for retirement showing that he was going to be retired from service on 28.9.1994 as per office record . The management 6902

THE GAZETTE OF INDIA : SEPTEMBER 8 , 2007/BHADRA 17, 1929

[PART II-SEC. 3 ( ii)] New Delhi , the 20th August , 2007

against the workman and therefore the competent authority videorder No.3769 dated : 24/29-11-95 terminated the service ofthe workman. It is submitted by the management in their written statement that the workman is not entitled to any relief whatsoever .

4. In order to prove their case the management filed affidavit of Shri B.K. Choudhary , the then working as Sub Area Manager in SECL , Jai Nagar Sub Area of Bisrampur Area.

S.O. 2573. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 240/1998 ) of the Central Government Industrial Tribunal- Cum- Labour Court, Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of SECL and their workmen , which was received by the Central Government on 17-8-2007 .

[No. L- 22012/583 / 1996- IR (CM - II ) ]

5. I have heard Shri A.K. Shashi , the Learned Counsel for the management .

AJAY KUMAR GAUR, Desk Officer

ANNEXURE

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

NO . CGIT /LC/ R/240/ 98

PRESIDING OFFICER : SHRI C.M.SINGH

Shri . Dular Sai , S/ o Sumeri ,

C/ o Shri M.L. Jain ,

6. I have very carefully gone through the entire evidence of the management on record . As there is no evidence on behalf of workman , the case of workman is not at all proved. Against it the case of management is fully established and proved from the uncontroverted and unchallenged affidavit of management's witness Shri B.K.Choudhary . Therefore the reference deserves to be decided in favour of the management and against the workman . Considering the facts and circumstances of the case I of the view that the parties should be directed to bear their own costs of this reference proceeding .

ExecutiveMember , S.K.M.S. ( AITUC), Near Panchayati Mandir, Shahdol (MP)

Union/workmen

Versus

The Sub Area Manager ,

Jai Nagar Sub Area ,

S.E.C.L. ,

7. In view of the above the reference is decided in favour of the management and against the workman holding that the action of tite Sub Area Manager , Jainagar Sub Area of Bisrampur Area of SECL in dismissing Shri Dular Sai , S/ o Sumeri , Cat.I Mazdoor , Jainagar , 3/4 Mine from company services w.e.f. 29-11-95 is legal and justified and the workman is not entitled to any relief. The parties shall bear their own costs of this reference .

Post: Bisrampur Colliery, Distt. Sarguja (MP)

Management

AWARD

8. Copy of the award be sent to the Government of India, Ministry of Labour as per rules .

Passed on this 13th day of June - 2007

C. M. SINGH, Presiding Officer

नई दिल्ली , 20 अगस्त , 2007

1.The Government of India, Ministry of Labour vide its Notification No.L - 22012/ 583 / 96/ IR (CM - 11 ) dated 30-10-98/02-11-98 has referred the following dispute for adjudication by this tribunal :-

का.आ. 2574.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार एस. ई. सी. एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , जबलपुर के पंचाट ( संदर्भ संख्या 150/1995 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

"Whether the action of the Sub Area Manager, Jai Nagar Sub Area of Bisrampur Area of SECL in dismissing Shri . Dular Sai , S/ o Sumeri , Cat . I Mazdoor , Jainagar 3/4 mine from company services w.e.f. 29-11-95 is legal and justified? Ifnot , what relief the workman is entitled to ? "

[सं. एल-22012/32/1995- आईआर (सी- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी

New Delhi , the 20th August, 2007

2. Vide order dated 01-09-05 passed on the order sheet of this reference proceeding the reference proceeded exparte again Shri Dular Sai , as inspite of sufficient service ofnotice he failed to put in appearance .

S.O. 2574.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the Award ( Ref . No. 150/1995) ofthe Central Govemment Industrial Tribunal- Cum- Labour Court , Jabalpur as shown in the Annexure in theIndustrial Dispute between the employers in relation to the management of SECL and their workmen , which was received by the Central Government on 17-8-2007 .

3.The management filed their written statement . Their case in brief is as follows . That the workman was under their employment as General Mazdoor Cat I. He was a habitual absentee . In the year 1992, 1993 , 1994 and 1995his attendance was 56, 23 , 93 and Nil respectively. Therefore he was charge sheeted and D.E. was legally and properly conducted against him. The charges wetre fully proved

[No. L-22012/32/ 1995 - IR ( C - II )] AJAY KUMAR GAUR, Desk Officer [ भाग II- खण्ड 3 ( ii) ]

ANNEXURE

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

JABALPUR

NO. CGIT/LC/R/ 150/ 95

PRESIDING OFFICER: SHRI C.M.SINGH

Branch Secretary,

National Colliery Workers Federation (NLO) ,

Manikpur Colliery,

Union/workmen Distt: Bilaspur (CG)

Versus

Dy. General Manager ,

S.E.C.L. , Manikpur Colliery,

Post: Manikpur Colliery,

Distt: Bilaspur ( CG )

Management

AWARD

Passed on this 14th day of June-2007 1. The Government of India, Ministry of Labour vide its Notification No. L-22012/32/95 - IR( C- II) dated 07-08-95 has referred the following dispute for adjudication by this tribunal :-

"Whether the demand of the National Colliery Workers Fedreation ( NLO ) for promotion of Sh. Budhai Prasad Kumar , EPGH Group ' E'andMurli Prasad Namdeo , EPGH Group ' E' to the post of E.P.FitterGr.III w.e.f05-05-94bythe management of Dy. Sub Area Manager , SECL, Manikpur Colliery is justified?

Ifso, to what relief the workmen are entitled ? " 2. The case of workmen Sh . Budhai Prasad Kumar and Shri Murli Prasad Namdeo filed by the Union is as follows . That both of them were appointed as trainees by the management of SECL on a consolidated stipend of Rs.350 P.M. After their 2 years training they were appointed as General Mazdoor Cat . I on 31-01-86 . Shri M.M. Gupte, S/ o M.P. Gupte was appointed in other project ofSECL as a dependant case on 17-06-86 with a condition that his seniority at Manikpur will be considered from 07-05-87 as he was transferred on his own request Shri Bharatlal S / o Mayaram ( ITI) was appointed on 04-06-95 as General Mazdoor Cat . II in Manikpur . All the above mentioned persons were promoted as " EPGH Group " ' E ' ( excavation) on 10-07-90. Shri M.M.Gupte and Shri Bharatlal were promoted as EP Fitter group ' D' superceding Shri Budhai Prasad and Namdeo . It is therefore prayed that workmen Budhai Prasad and Namdeo may be promoted from the date theirjuniors have been promoted .

3. The Management filed their Written Statement Their case in brief is as follows . That the management had prepared a seniority list in connection with 14 persons in which the name of Bharatlal is at S.No. 10 and the name of Murli Prasad is at Sr. No. 14. Promotion of EPGH to EP Fitter is selection post in which the trade test is conducted. The service particulars ofthe workmen and Bharatlal and Madan Gupta are given below .

6903

भारत का राजपत्र सितम्बर 8 , 2007/ भाद्र 17 , 1929

S1 . Name/

Dateof Cat.I Cat. II EPGH EP fitter No. Father's

Gr. - III Appointment

1. Shri Bharatlal 4-6-86 4-6-86 t - t - 88 10-7-90 5-5-94 2. Shri Madan 17-6-86 17-6-86 1-1-88 10-7-90 5-5-94 Gupta

4. Elegible candidate for promotion from the post of EPGH to EP Fitter was considered by the DPC conducted on 13-9-93 to 29-9-93 that the workmen could not qualify the trade test conducted by the DPC and hence their cases were not recommended for promotion . Workman Shri Budhai Prasad has also been promoted to EPGr. III vide order dated 01-9-97 . He has been again promoted to the post II EP ' Fitter Grade III vide order dated 24/27-9-03 . workman Shri Murli Prasad has changed his cadre w.e.f. 29-8-98 and hence he has no case . It is very clear from the above that workmen Shri Budhai Prasad and Shri Murli Prasad were not superceded by Shri Bharatlal and Shri Madan Gupta as alleged . Therefore they have no case.

5. Vide order dated 20-9-05 on the order sheet ofthis reference proceeding the case against workmen/union proceeded exparte .

6. The management filed affidavit of their witness Shri Arvind Kumar Sinha as exparte evidence . This witness was then posted as Dy . Personnel Manager at Manikpur Colliery, Korba Area of SECL .

7. I have heard Shri A.K. Shashi , Advocate , learned . counsel for management .

8. I have very carefully gone through the evidence onrecord.

9. As the case proceeded exparte against the workmen/ union , there is no evidence of workmen/union on record. The case of the management is fully proved from the uncontroverted affidavit of their witness Shri Arvind Kumar Sinha . In view of it, the reference deserves to be decided in favour of management and against the workmen . Considering the facts and circumstances of the case, I am of the view that the parties should be directed to bear their own costs of this reference proceeding .

10. In view of the above , the reference is decided in favour ofthe management and against the workmen/union holding that the demand of the National Colliery Worker's Federation (NLO) for promotion of Shri Budhai Prasad Kumar, EPGHGroup "E" and Murli Prasad Namdeo, EPGH Group "E" to the post of E.P. Fitter Gr . III w.e.f. 05.5.94 by the management of Dy . Sub Area Manager , SECL , Manikpur Colliery is not justified and consequently the workmen are not entitled to any relief . The parties shall bear their own costs of this reference proceeding.

Copy of the award be sent to the Government of India, Ministry of Labour as per rules .

C. M. SINGH , Presiding Officer

Printed by the Manager , Govt . of India Press , Ring Road , Mayapuri , New Delhi - 110064 and Published by the Controller of Publications , Delhi - 110054 .