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

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

सत्यमेवजयते भारत का राजपत्र The Gazette of India

प्राधिकार से प्रकाशित

PUBLISHED BY AUTHORITY

साप्ताहिक

WEEKLY

सं. 37]

नई दिल्ली, सितम्बर 9- सितम्बर 15, 2007, शनिवार/भाद 18-भाद 24, 1929 NEW DELHI , SEPTEMBER 9 -SEPTEMBER 15, 2007 , SATURDAY/BHADRA 18-BHADRA 24, 1929 No. 37]

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)

कार्मिक, लोक शिकायत तथा पेंशन मंत्रालय (कार्मिक और प्रशिक्षण विभाग )

नई दिल्ली, 6 सितम्बर ; 2007

का.आ. 2575, -केन्द्रीय सरकार एतद्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम , 1946 ( 1946 का अधिनियम सं. 25 ) की धारा 6 के साथ पठित धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मिजोरम राज्य सरकार के गृह. विभाग की अधिसूचना ज्ञापन सं. डी-32020 / 12 / 2005 एचएमपी दिनांक आइजवॉल , 10 मई , 2007 द्वारा प्राप्त सहमती से भारतीय दंड संहिता की धारा 365/418 के अधीन पुलिस स्टेशन वेरेनगते, मिजोरम में दिल्ली से लापता हुए नाबालिग लड़के शिलांगथंगा के संबंध में अपराध + 15/2006 दिनांक4-3-2006 तथा उपर्युक्त अपराधों से संबंधित अथवा संसक्त प्रयत्नों , दुष्प्रेरणों और षड़यंत्रों तथा उसी संव्यवहार के अनुक्रम में किए गए तथा उन्हीं तथ्यों से उद्भूत किन्हीं अन्य अपराधों काअन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्यों की शक्तियों और अधिकारिता का विस्तार सम्पूर्ण मिजोरम राज्य पर करती है।

[फा. सं. 228/27/2007- एवीडी-11 ]

चन्द्र प्रकाश , अवर सचिव 3677 GI/ 2007

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(Department of Personnel and Training) New Delhi , the 6th September , 2007 S.O. 2575. In exercise of the powers conferred by Sub- section ( 1 ) of Section 5 , read with Section 6 of the Delhi Special Police Establishment Act , 1946 (Act , No. 25 of1946) , the Central Government with the consent of State Government of Mizoram vide Home Department Notification Memo No. D- 320/20/ 12/2005 - HMP dated Aizawal , the 10th May , 2007 hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of State of Mizoram for investigation in Crime No. 15/2006 dated 4-3-2006 under Section 365/418 IPC of P.S. Vairengte , Mizoram regarding the disapperance of a minor boy named Shillongthanga from Delhi and abetments , attempts and conspiracies in relation to or in connection with the said offences and any other offences committee in course of the same transaction .

[F. No. 228/27/2007 - AVD- 11 ] CHANDRA PRAKASH , Under Secy.

(6905) 6906

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3 ( ii) ] वित्त मंत्रालय (राजस्व विभाग )

2. और , जबकिकेन्द्रीय सरकार के पास यह विश्वास करने का कारण है कि उक्त व्यक्ति या तो फरार था या अपने आप को छुपा रहा था ताकि नजरबन्दीकरण आदेश को निष्पादित न किया जा सके। नई दिल्ली, 30 अगस्त, 2007

का.आ. 2576.- केन्द्रीय सरकार राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उप - नियम (4) के अनुसरण में राजस्व विभाग के अधीन केन्द्रीय उत्पाद एवं सीमा शुल्क बोर्ड के निम्नलिखित क्षेत्रीय कार्यालय को, जिसके 80 प्रतिशत कर्मचारीवृंद ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है, अधिसूचित करती है -

3. और जबकि अतः एव केन्द्र सरकार ने उक्त अधिनियम की धारा 7 की उप - धारा ( 1 ) के खण्ड ( ख ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए दिनांक 1-5-2006 को आदेश सं. 673 /02/2006-कस्टम-8 यह निदेश देते हुए जारी किया कि उक्त व्यक्ति दिनांक 1-5-2006 के उक्त आदेश के सरकारी राजपत्र में प्रकाशन के 7 दिन के अन्दर पुलिस आयुक्त , सूरत के समक्ष उपस्थित हों।

केन्द्रीय उत्पाद शुल्क आयुक्त का कार्यालय थाने -2 , नवप्रभात चेम्बर्स , रानडे रोड , दादर ( पश्चिम ) , मुम्बई-400028

[फा. सं. 11013 ( 01 ) 2007 हिन्दी-2 ]

4. और जबकि विदेशी मुद्रा संरक्षण एवं तस्करी निवारण अधिनियम , 1974 की धारा 7 ( 1 ) ( क ) के अन्तर्गत एक रिपोर्ट मुख्य न्यायिक मजिस्ट्रेट , सूरत को अपराधिक दण्ड प्रक्रिया संहिता , 1973 की धारा 82 , 83 , 84 तथा 85 के अन्तर्गत उक्त व्यक्ति के विरुद्ध आगे कार्यवाही शुरु करने के अनुरोध के साथ प्रस्तुत की थी। मधु शर्मा , निदेशक ( रा.भा. )

MINISTRY OF FINANCE (Department of Revenue)

New Delhi , the 30th August, 2007

5. और जबकि उक्त व्यक्ति को अहमदाबाद में गुजरात उच्च न्यायालय के निर्कट पकड़ा गया था तथा 27-3-2006 के आदेश फा. सं. 673/02/2006- कस्टम-8 के अनुसरण में 14-7-2007 को गुजरात , अहमदाबाद के साबरमती सेंन्ट्रल जेल में नज़रबन्द किया गया था।

S.O. 2576.-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 office under the Central Board of Excise and Customs , Department of Revenue , the 80 % staff whereof have acquired the working knowledge ofHindi :-

6. और, जबकि उक्त व्यक्ति ने बन्दी बनाए जाने के आधारों को स्वीकार करने से मना कर दिया था तथा 16-7-2007 को साबरमती जेल में उसको राजस्व आसूचना निदेशालय , सूरत द्वारा तामिल किए जाने का प्रयास करने वाले दस्तावेजों को अपना आधार बनाया।

Commissioner of Central Excise , Thane -2,

Navprabhat Chambers Ranade Road, Dadar (West ) , Mumbai -400028.

[ F. No. 11013 (01 )2007- Hindi -2 ] MADHU SHARMA , Director ( OL)

7. और , जबकि उक्त व्यक्ति द्वारा दिनांक 27-3-2006 के उक्त नज़रबन्दी आदेश के विरुद्ध दायर की गई विशेषसिविल आवेदन सं. 12713/2006 पर अहमदाबाद में गुजरात के माननीय उच्च न्यायालय की एकल न्यायाधीश की पीठ ने 16-7-2007 को उक्त व्यक्ति को अन्तरिम आदेश पारित कर तत्काल छोड़ दिया।

केन्द्रीय आर्थिक आसूचना ब्यूरो

आदेश

नई दिल्ली , 7 सितम्बर , 2007

8. और , जबकि राजस्व आसूचना निदेशालय द्वारा दायर लैटर्स पेटेंटअपील सं. 1175/2007 पर गुजरात के माननीय उच्च न्यायालय कीदो पीठों ने 18-7-2007 के अपने आदेश में गुजरात के माननीय उच्च न्यायालय की एकल न्यायाधीश की पीठ के 16-7-2007 के अन्तरिम आदेश के प्रचालन को स्थापित कर दिया है ।

9. और , जबकि अधीक्षक , केन्द्रीय जेल , साबरमती अहमदाबाद , गुजरात के कार्यालय से दिनांक 17-7-2007 के पत्र सं. डी.टी.एन. /कोफेपोसा/360/2007 के तहत प्राप्त हुई रिपोर्ट के अनुसार उक्त व्यक्त को अहमदाबाद में स्थित गुजरात के माननीय उच्च न्यायालय की एकल न्यायाधीश पीठ के उपर्युक्त आदेश के अनुसरण में दिनांक 17-7-2007 को इसी बीच जेल से मुक्त कर दिया था , इस प्रकार उपर्युक्त व्यक्तिपर दिनांक 27-3-2006 के नजरबन्दी आदेश सं. फा. सं. 673/02/2006- सी.सु. -8 का निष्पादन असम्भव है। का.आ. 2577.- जबकि , भारत सरकार के संयुक्त सचिव , जिन्हें विदेशी मुद्रा संरक्षण और तस्करी निवारण अधिनियम, 1974 (1974का 52 ) की धारा 3 की उप - धारा ( 1 ) के तहत विशेष रूप से अधिकार दिया गया है , ने उक्त उप- धारा के अंतर्गत दिनांक 27-3-2006 को यह निदेश देते हुए आदेश फा सं. 673/02/2006-सी. शु. - 8 जारी किया था कि श्री रामगोपाल कूडल , निवासी डी-1109-1110 , आशीर्वाद पार्क, सिटी लाइट, सूरत, गुजरात को भविष्य में माल की तस्करी करने से रोकने के उद्देश्य से सेन्ट्रल जेल , साबरमती , गुजरात में नज़रबन्द किया जाए और अभिरक्षा में रखा जाए ।

10. और , जबकि केन्द्रीय सरकार के यह विश्वास करने के लिए कारण है कि उक्त व्यक्ति ने माननीय उच्च न्यायालय के 6907

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

[ भाग II- खण्ड 3 (ii ) ]

दिनांक 18-7-2007 के आदेश का अनुपालन नहीं किया है और वह स्वयं को छिपा रहा है ।

7. And, whereas on a Special Civil Application No. 12713/2006 filed by the aforesaid person against the said Detention Order dated 27-3-2006 a single Judge Bench of the Hon'ble High Court of Gunarat at Ahmedaad, passed an interim order on 16-7-2007, setting the aforesaid person atliberty forthwith.

11. अब , इसलिए , उक्त अधिनियम की धारा 7 की उप- धारा (1 ) के खण्ड ( ख ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्रीय सरकार एतद्वारा उक्त व्यक्ति को सरकारी राजपत्र में इस आदेश के प्रकाशन के 7 दिनों के भीतर पुलिस आयुक्त सूरत के सामने उपस्थित होने का निदेश देती है ।

[फा. सं. 673/02/2006-- कस्ट- VIII ]

ए. के. बरुआ , उप-सचिव

8. And, whereas on a Letters Patent Appeal No. 1175/2007 filed by Directorate of Revenue Intelligence a double Bench of the Hon'ble High Court of Gujarat in its order dated 18-7-2007 has stayed the operation of interim order dated 16-7-2007 of the single Judge Bench of the Hon'ble High Court of Gujarat .

CENTRAL ECONOMIC INTELLIGENCE BUREAU ORDER

New Delhi , the 7th September , 2007

9.And, whereas as per report received from the Office of the Superintendent , Central Prison , Sabarmati , Ahmedabad , Gujarat vide letter No. DIN /COFEPOSA/360/ 2007 dated 17-7-2007 , the aforesaid person was in the meanwhile released from jail on 17-7-2007 pursuant to the aforesaid Order of the Single Judge Bench of the Hon'ble High court ofGujarat at Ahmedabad, thereby rendering it impossible for execution of the Detention Order F. No. 673/ 02-2006-Cus . VIII dated 27-3-2006 on the aforesaid person.

10. And, whereas the Central Government has reason to believe that the aforesaid person has not complied with the Hon'ble High Court's Order dated 18-7-2007 and is concealing himself.

S.O. 2577. Whereas the Joint Secretary to the Government of India, specially empowered under Sub- section ( 1 ) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974 (52of 1974) issued order F. No. 673/02/2006- Cus . VIII dated 27-3-2006 under the said sub - section directing that Shri Ramgopal Kudal , R/ o , D- 1109-1110, Ashirwad Park, City Light, surat , Gujarat , be detained and kept in custody in the Central jail , Sabarmati , Gujarat , with a view to preventing him from smuggling goods in future.

2.And, whereas the Central Government had reason to believe that the aforesaid person absconded or was concealing himself so that the Detention Order could not be executed.

11. Now, therefore , in exercise of the powers conferred by clause (b) of sub - section ( 1 ) of Section 7 of the said Act , the Central Government hereby directs the aforesaid person to appear before the Commissioner of Police , Surat , within 7 days of the publication of this order. in the Official Gazette .

[F. No. 673/02/2006- Cus . VIII ] A. K. BARUA , Dy . Secy .

वित्तीय सेवाएं विभाग (बैंकिंग प्रभाग)

3. And , whereas , therefore , the Central Government in exercise of the powers conferred by clause (b ) of Sub- section ( 1 ) of Section 7 of the said Act issued Order No. 673/02/2006 - Cus . VIII dated 1-5-2006 directing the aforesaid person to appear before the Commissioner of Police, Surat, within 7 days of the publication of the said Orderdated 1-5-2006 in the Official Gazette .

नई दिल्ली , 10 सितम्बर , 2007 4. And, whereas also a report under section 7 ( 1 ) (a) of the Conservation of foreign Exchange and Prevention of smuggling Activities Act , 1974 was submitted to the ChiefJusdicial Magistrate , Surat , with a request to initiate further proceedings against the aforesaid person under Sections 82, 83 , 84 and 85 of the Code of Criminal Procedure, 1973 .

का.आ. 2578.- भारतीय निर्यात- आयात बैंक अधिनियम , 1981 ( 1981 का 28 ) की धारा 6 की उप - धारा ( 1 ) के खण्ड (ङ) के उप-खण्ड ( ii ) के अनुसरण में, केन्द्रीय सरकार , एतद्वारा श्री एम.बी.एन. राव , अध्यक्ष एवं प्रबंध निदेशक , केनरा बैंक, को तीन वर्ष की अवधि के लिए अथवा अगले आदेश होने तक , जो भी पहले हो, भारतीय निर्यात- आयात बैंक के निदेशक मण्डल में अंशकालिक गैर- सरकारी निदेशक के पद पर नियुक्त करती है।

[फा. सं. 24/27/2001- आईएफ. - 1 ] एम. साहू, अवर सचिव 5. And, whereas the aforesaid person was apprehended near the High Court of Gujarat at Ahmedabad and was detained in the Central Prison , Sabarmati , Ahmedabad, Gujarat , on 14-7-2007 in pursuance of the Order F.No. 673/02/2006 - Cus . VIII dated 27-3-2006.

(Department ofEconomic Affairs) (Banking 'Division)

New Delhi , the 10th September , 2007

S.O.2578 .-In pursuance of sub - clause ( ii ) of clause (e) of sub- section ( 1 ) of Section 6 of the Export Import 6. And, whereas the aforesaid person refused to accept the Grounds of detention and the Relied Upon Documents which the directorate of Revenue Intelligence , Surat , tried to serve upon him in Sabarmati Jail on 16-7-2007.

6908

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3 ( ii) ]

अधिसूचना संख्या का. आ. 138 में निम्नलिखित और संशोधन करती है अर्थात्:-

Bank of IndiaAct, 1981 (28 of 1981 ) , Central Government hereby appoint Shri M.B.N. Rao , Chairman and Managing Director, Canara Bank as part - time non - official Director , on the Board of Directors of Exim Bank for a period of three years or until further orders , whichever is earlier.

उक्त अधिसूचना में " धारा 3 की उप- धारा ( 1 ) के खण्ड (ख ) के अधीन निर्वाचित " शीर्षक के अंतर्गत क्रम संख्या 2 के सामने निम्नलिखित प्रविष्टियां प्रतिस्थापित की जाएंगी अर्थात्:-

[F.No. 24/ 27/2001 - IF - I ] M. SAHU , Under Secy.

केरल यूनिवर्सिटी" कारपोरेट कार्य मंत्रालय नई दिल्ली, 3 सितम्बर , 2007

" 2. डॉ. ( श्रीमती ) रानी भास्करन प्रोफेसर एवं विभागाध्यक्ष , ( सेवानिवृत्त ) , तंत्रिका विज्ञान विभाग , मेडिकल कॉलेज , तिरुवनंतपुरम

[फा. सं. वी. - 11013/ 1/2007- एमई ( नीति-1 ) ] टी. जे. एस. चावला , अवर सचिव का.आ. 2579.-केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उप- नियम (4) के अनुसरण में , कारपोरेट कार्य मंत्रालय के निम्नलिखित 3 कार्यालयों में हिन्दी का कार्यसाधक ज्ञान रखने वाले कर्मचारियों की संख्या 80 प्रतिशत से अधिक हो जाने के फलस्वरूप उन्हें एतद्वारा अधिसूचित करती है :-

MINISTRY OF HEALTH AND FAMILY WELFARE (Department of Health and Family Welfare) 1. कम्पनी रजिस्ट्रार , पुणे

New Delhi , the 29th August, 2007 2. भारतीय प्रतिस्पर्धा आयोग , नई दिल्ली

3. गंभीर धोखाधड़ी जांच- पड़ताल कार्यालय , नई दिल्ली।

[सं. ई. - 12018 /1/2006- हिन्दी] सविता प्रभाकर , उप सचिव

MINISTRY OF CORPORATE AFFAIRS NewDelhi , the 3rd September , 2007

S.O. 2580.-Whereas in pursuance of the provision ofSub - section ( 1 ) (b ) of Section 3 of the Indian Medical Council Act, 1956 ( 102 of 1956) Dr. (Smt . ) Rani Bhaskaran , Professor and Head (Retd . ) , Department of Neurology , Medical College, Thiruvananthapuram , a member of the faculty ofMedicine, University of Kerala has been elected uncontested by the senate of University of Kerala to be a member of the Medical Council of India for five years with effect from date of issue of this notification.

S.O. 2579.-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 three offices of the Ministry of Corporate Affairs, where of more than 80 % employees have acquired working knowledge ofHindi :-

1. Registrar of Companies , Pune.

Now, therefore, in pursuance of the provision ofSub- section ( 1 ) of Section 3 of the said Act , the Central Government hereby makes the following further amendment in the Notification of the Government of India in the then Ministry of Health number S.O. 138 dated the 9th January , 1960, namely:-

2. Competetion Commission of India, New Delhi .

3. Serious Fraud Investigation Office, New Delhi . [No. Ε . 12018/01 /2006 -Hindi ] SAVITA PRABHAKAR , Dy . Secy.

Inthe said Notification , under the heading , "Elected under clause ( b) of sub - section ( 1 ) of Section 3 " , against serial number 2, the following entries shall be substituted . namely :

University of Kerala " स्वास्थ्य और परिवार कल्याण मंत्रालय

(स्वास्थ्यऔर परिवार कल्याण विभाग )

नई दिल्ली, 29 अगस्त , 2007

"2. Dr. ( Smt . ) Rani Bhaskaran , Professor and Head (Retd .) Department of Neurology , MedicalCollege , Thiruvananthapuram .

[F. No. V- 11013/ 1 /2007- ME ( P- 1 ) ] T. J. S. CHAWLA, Under Secy .

का. आ. 2580.- भारतीय आयुर्विज्ञान परिषद् अधिनियम , 1956 (1956 का 102 ) की धारा 3 की उप - धारा ( 1 ) ( ख ) के उपबंध के अनुसरण में डॉ. ( श्रीमती ) रानी भास्करन प्रोफेसर एवं विभागाध्यक्ष , (सेवानिवृत्त ) , तंत्रिका विज्ञान विभाग , मेडिकल कॉलेज , तिरुवनंतपुरम , काय चिकित्सा संकाय सदस्य केरल यूनिवर्सिटी को इस अधिसूचना के जारी होने की तरीख से पांच वर्षे की अवधि के लिए केरल यूनिवर्सिटी की सीनेट द्वारा भारतीय आयुर्विज्ञान परिषद के एक सदस्य के रूप में निर्विरोध निर्वाचित किया गया है।

विदेश मंत्रालय (सी.पी.वी प्रभाग) नई दिल्ली , 30 अगस्त, 2007

अतः, अब , उक्त अधिनियम की धारा 3 की उप- धारा ( 1 ) के उपबंध के अनुसरण में , केन्द्र सरकार एतद्वारा भारत सरकार के तत्कालीन स्वास्थ्य मंत्रालय की दिनांक 9 जनवरी , 1960 की

का. आ. 2581. - राजनयिक कौंसली अधिकारी ( शपथ एवं शुल्क) अधिनियम , 1948 ( 1948 का 41 वां ) व 2 के अंक ( क ) के अनुसरण में केन्द्रीय सरकार एतद्वारा भारत का राजदूतावास , खार्टूम 6909

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

(iii ) उपर्युक्त से संगतपूर्ण अन्य अनुशंसा करना । (सूडान ) में श्री एस. डी. के. मेनन्, सहायक को 30-8-2007 से सहायक कौंसलर अधिकारी का कार्य करने हेतु प्राधिकृत करती है।

[सं. टी-4330/1/2006 ]

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

प्रीतम लाल , अवर सचिव ( कौंसुलर )

6. विशेषज्ञ दल की बैठकों के आयोजन हेतु सहायता अल्पसंख्यक कार्य मंत्रालय द्वारा उपलब्ध कराई जाएगी । MINISTRY OF EXTERNAL AFFAIRS (C.P.V. Division )

New Delhi , the 30th August , 2007

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

S.O. 2581.- In pursuance of the clause ( a) of the Section 2ofthe Diplomatic and Consular Officers ( Oaths and Fees ) Act, 1948 , ( 41 of 1948 ) the Central Government hereby authorize Shri S.D.K. Menon , Assistant to perform the duties of Assistant Consular Officer in the Embassy of India, Khartoum with effect from 30th August , 2007.

No. Τ. -4330/1/2006]

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 वहन किया जाएगा । ऐसे सदस्य भारत सरकार में उच्चतम श्रेणी के ग्रेड-1 अधिकारी के समकक्ष यात्रा भत्ता/दैनिक भत्ता के पात्र होंगे । PRITAM LAL , Under Secy . (Consular )

( ii ) स्टेशन के बाहर के गैर - सरकारी सदस्यों को व्यय विभाग के दिनांक 10-8-1994 के का.ज्ञा. सं. 19020/2/94/स्था. IV के अनुसार , एक कमरे के किराए का भुगतान किया जाएगा । अल्पसंख्यक कार्य मंत्रालय नई दिल्ली , 31 अगस्त , 2007

(iii ) गैर- सरकारी सदस्य बैठक में भाग लेने के लिए प्रतिदिन 2000 रुपए के हकदार होंगे ।

विषय : समान अवसर आयोग की संरचना और कार्य प्रणाली की जांच और उनके निर्धारण के लिए विशेषज्ञ दल का गठन

का.आ. 2582.- सच्चर समिति ने, अन्य बातों के साथ- साथ निम्नलिखित सिफारिशें की थीं:-

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

[सं. 14-12/2006 (ईओसी ) पीपी-1 ] ए. लुईखम , संयुक्त सचिव

" कानून के तहत यह सिद्धान्ततः सर्वमान्य है कि न्याय केवल किया ही नहीं जाना चाहिए , अपितु न्याय हुआ प्रतीत होना चाहिए । इसी संदर्भ में समिति यह सिफारिश करती है कि वंचित लोगों की परिवेदनाओं के निवारण के लिए सरकार द्वारा समान अवसर आयोग का गठन किया जाना चाहिए । "

MINISTRY OF MINORITY AFFAIRS New Delhi , the 31st August , 2007 2. समान अवसर आयोग की संरचना और कार्यप्रणाली की जांच और उनके निर्धारण के लिए विशेषज्ञ दल गठित करने का निर्णय लिया गया है । विशेषज्ञ दल में शामिल होंगे-

Sub : Constitution of an Expert Group to examine and determine the structure and functions of an Equal Opportunity Commission .

-अध्यक्ष

(i ) प्रो. (डॉ. ) एन.आर. माधव मेनन

-सदस्य

( ii ) प्रो. जावेद आलम

S.O. 2582.- The Sachar Committee had , inter - alia , recommended as follows :-

-सदस्य

(iii ) प्रो. सतीश देशपांडे.

-सदस्य

(iv ) प्रो. योगेन्द्र यादव

-सदस्य

( v) प्रो. गोपाल गुरू

" It is a well accepted maxim in law that not only must justice be done but it must appear to be done . It is in that context that the Committee recommends that an Equal Opportunity Commission (EOC) should be constituted by the Governmentto look into the grievances of the deprived groups . " 3. विशेषज्ञ दल का अध्यक्ष , यथावश्यक , ऐसे दो अतिरिक्त सदस्यों को नियुक्त कर सकेगा , जिन्हें दल द्वारा अपेक्षित विशेषज्ञता हासिल हो ।

2. It has been decided to set up an Expert Group to examine and determine the structure and functions of an Equal Opportunity Commission . The Expert Group shall consist of the following:-

4. विशेषज्ञ दल द्वारा विचारणीय मुद्दे इस प्रकार हैं:-

----Chairman

(i ) Prof. (Dr. ) N.R. Madhava Menon

-Member

(ii) Prof. Javeed Alam

-Member (i ) प्रस्तावित समान अवसर आयोग की संरचना , कार्य क्षेत्र और कार्यप्रणाली से संबंधित अनुशंसा करना ।

(iii) Prof. Satish Deshpande

-Member

(iv) Prof. Yogendra Yadav

-Member

(v) Prof. Gopal Guru

(ii) ऐसे आयोग के लिए उपयुक्त विधायी ढांचे संबंधी सलाह देना । 6910

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

3. If considered 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 as follows:-

(i) to recommend the structure , scope and functions of the proposed Equal Opportunity Commission .

(ii) to advise on an appropriate legislative framework for such a Commission.

(iii) 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 shall be provided by the Ministry of Minority Affairs .

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

8. (i) The expenditure on TA/DA of the non -official members. ofthe Expert Group in connection with the meeting of the Group will be borne by the Ministry of Minority Affairs . They will be entitled to TA/DA as admissible to Grade - 1 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 terms of Department of Expenditure O.M.No. 19020/2/94/EIV 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. 26 /JS & FA/ MA dated 24-8-2007.

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

संस्कृति मंत्रालय नई दिल्ली, 30 अगस्त, 2007

का.आ. 2583.- केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उप- नियम 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 उप - मण्डल , अजंता। 2. भारतीय पुरातत्व सर्वेक्षण , दौलताबाद, उप- मंडल, दौलताबाद। 3. भारतीय पुरातत्व सर्वेक्षण , लोणार उप-मंडल, लोणार । 4. भारतीय पुरातत्व सर्वेक्षण , नासिक उप-मंडल , नासिक। 5. भारतीय पुरातत्व सर्वेक्षण , नागपुर उप- मंडल , नागपुर। 6. भारतीय पुरातत्व सर्वेक्षण , चंद्रपुर उप- मण्डल, चन्द्रपुर। 7. भारतीय पुरातत्त्व सर्वेक्षण , अहमदनगर उप - मंडल , अहमदनगर ।

8. भारतीय पुरातत्व सर्वेक्षण , लखनऊ मंडल , अलीगंज , लखनऊ।

[PART II-SEC . 3 ( ii) ] 9. भारतीय पुरातत्व सर्वेक्षण , लखनऊ , उप- मंडल - प्रथम , लखनऊ।

10. भारतीय पुरातत्व सर्वेक्षण , लखनऊ , उप-मंडल-द्वितीय , रेजीडेन्सी, लखनऊ।

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

12. भारतीय पुरातत्व सर्वेक्षण , कानपुर उप- मण्डल , कचहरी सिमेट्री,कानपुर।

13. भारतीय पुरातत्व सर्वेक्षण , उप- मंडल इलाहाबाद , खुसरोबाग गेट, इलाहाबाद।

14. भारतीयः पुरातत्व सर्वेक्षण, उप - मण्डल ललितपुर , मकान नम्बर 30 , मौथाना नया जैन मंदिर , ललितपुर। 15. भारतीय पुरातत्व सर्वेक्षण, उप - मण्डल महोबा , कीरत सागर चर्च के पास , राठ रोड, महोबा।

16. भारतीय पुरातत्व सर्वेक्षण , उप- मंडल झांसी , रानी लक्ष्मी बाई पैलेसे , झांसी।

17. भारतीय पुरातत्व सर्वेक्षण, उप- मण्डल फैजाबाद , गुलाबबाड़ी, फेजाबाद ।

18. भारतीय पुरातत्व सर्वेक्षण , उप- मंडल श्रावस्ती , सहेट , श्रावस्ती।

[सं. 1-1 /2007- हिन्दी ]

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

New Delhi , the 30th August , 2007 S.O. 2583.-In pursuance of sub - rule (4) of 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. Archaeological Survey of India , Lonar Sub- circle , Lonar.

4. Archaeological Survey of India, Nasik Sub- cirle , 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 , Ahmednagar .

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

9. Archaeological Survey of India , Lucknow Sub -circle - I, Lucknow.

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

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

6911

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

[ भाग II- खण्ड 3 (ii) ]

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

13. Archaeological 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, NearKirat 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 HINGO RANI , Director (OL) संचार और सूचना प्रौद्योगिकी मंत्रालय (दूरसंचार विभाग )

(राजभाषा अनुभाग )

नई दिल्ली , 5 सितम्बर , 2007

का.आ. 2584. - 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 टेलीफोन निगम लिमिटेड , मुम्बई मुम्बई । महाप्रबंधक ( नवी मुम्बई ) महानगर टेलीफोन निगम लिमिटेड ,

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

(Department of Telecommunications) (Official Language Section) New Delhi , the 5th September , 2007 S.O. 2584. In pursuance of rule 10(4 ) of the Official Language (Use for official purposes of the Union) , rules , 1976 (asamended- 1987 ), the Central Government hereby notifies the following Office under the administrative control of the Ministry ofCommunications and Information Technology , Department ofTelecommunications where more than 80 % of staff have acquired working knowledge of Hindi .

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

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

कृषि मंत्रालये

( कृषि अनुसंधान तथा शिक्षा विभाग )

नई दिल्ली , 31 अगस्त, 2007

का.आ. 2585.- केन्द्रीय सरकार , कृषि अनुसंधान एवं शिक्षा विभाग , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियमावली , 1976 के नियम 10 के उपनियम (4 ) के अनुसरण में राष्ट्रीय पादप आनुवंशिक संसाधन ब्यूरो , ( भा.कृ.अ.प. ) पूसा , नई दिल्ली के क्षेत्रीय केंद्र , श्रीनगर ( जम्मू- कश्मीर ) , को जिसके 80 प्रतिशत से अधिक कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है, एतद्वारा अधिसूचित करती है।

[सं. 13-2/2002 - हिन्दी] डी. के. छतवाल , अवर संचिव MINISTRY OF AGRICULTURE

(Department of Agricultural Research and Education) NewDelhi , the 31st August , 2007

S.O. 2585. In pursuance of Sub - rule (4) of Rule 10 of the Official Language (Use for Official Purpose of the Union) , Rules , 1976, the Central Government , Ministry of Agriculture , Department of Agricultural Research and Education hereby notifies the Regional Centre , Srinagar (J&K) of National Bureau of Plant Genetic Resources , Pusa, New Delhi , the Indian Council of Agricultural Research (ICAR) where more than 80 % of staff have acquired the working knowledge ofHindi .

[No. 13-2/2002-Hindi ] D. K. CHHATWAL , Under Secy.

(कृषि एवं सहकारिता विभाग )

नई दिल्ली , 5 सितम्बर , 2007

का.आ. 2586. - भारत सरकार कृषि मंत्रालय , कृषि एवं सहकारिता विभाग की दिनांक 21-6-2007 की समसंख्यक अधिसूचना में आंशिक संशोधन करते हुए, एतद्वारा कार्यालय का नाम " वनस्पति संरक्षण केन्द्र" के स्थान पर " वनस्पति संगरोध केन्द्र " पढ़ा जाए ।

[सं. 3-6/2004-हिन्दी नीति] के. एन. कुमार, संयुक्त सचिव (Department of Agriculture and Cooperation) New Delhi , the 5th September, 2007 S.O. 2586. In partial modification of Government of India, Ministry of Agriculture, Department of Agriculture and Cooperation's notification of even number dated 21st June , 2007 hereby the name of the office may please be read as "Plant Quarantine Centre " instead of "Plant Protection Centre . "

[No. 3-6/2004- Hindi Neeti] K. N. KUMAR , Jt . Secy.

कोयला मंत्रालय

नई दिल्ली , 12 सितम्बर , 2007

का.आ. 2587.-केन्द्रीय सरकार ने कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम, 1957 ( 1957 का 20 ) ( जिसे इसमें इसके 6912

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

[PART II-SEC . 3( ii) ]

ग्राम भानेगांव में अर्जित किए गए प्लॉट संख्यांक :

1,2,3,4,5,6/ 1 क-6/10-6/2, 7, 8, 9, 10, 12/1-12/ 1 क-12/1 ख-- 12/1 ग-12/2, 17 , 18/1-18/2-19/1-19/2, 20, 21 , 22, 23, 24, 25, 26, 27 , 28,29/1-29/2,30/1-30/2, 31 , 32/ 1-32/2-32/3 , 33/1-33/2, 34, 35, 36,37,38/ 1क-38/ 1 ख-38/2क-38/2ख,39, 40/1-40/2, 41 ,42,43/ 1-43/2,44,45/1-45/2, 46, 47, 48, 49/ 1-49/2, 50/1-50/2,51/1- 51/2, 52, 53, 54/1-54/2,55,56,57,58 , 59, 60, 61 , 76 , 77/ 1-77/2, 78,79, 80/1-80/2-80/3 , 81 , 82/ 1-82/2, 85/2, सड़क ( भाग ) । सीमा वर्णन:

पश्चात् उक्त अधिनियम कहा गया है ) की धारा 7 की उपधारा ( 1 ) के अधीन भारत सरकार के कायेला मंत्रालय की अधिसूचना संख्यांक का.आ. 3848 , तारीख 10 अक्टूबर , 2005 को जारी और जो भारत के असाधारण राजपत्र , भाग 2 , खण्ड 3 , उप- खण्ड ( ii ) तारीख 22 अक्टूबर , 2005 में प्रकाशित की गई थी, द्वारा उस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट परिक्षेत्र की भूमि में जिसका माप लगभग 135.02 हेक्टयेर ( लगभग ) या 333.63 एकड़ ( लगभग ) है , खनिजों के खनन , खदान , बोर करने , उनकी खुदाई करने और खनिजों की तलाश करने , उन्हें प्राप्त करने , उन पर कार्य करने और उन्हें ले जाने के अधिकारों के अर्जन करने के आशय की सूचना दी थी।

और सक्षम प्राधिकारी ने उक्त अधिनियम की धारा 8 के अनुसरण में केन्द्रीय सरकार को अपनी रिपोर्ट दे दी है ।

क-ख रेखा बिन्दु ' क ' से आरम्भ होती है और प्लॉट संख्यांक 1, 2, 3 , 4, 5, 6/1-6/1 ख/6/2, 7 , 8 , 12/1-12/1 क-12/ 1ख/12/1 ग-12/2 की बाह्य सीमा के साथ-साथ ग्राम भानेगांव से गुजरती है और बिन्दु रुख पर मिलती है।

और केन्द्रीय सरकार का, पूर्वोक्त रिपोर्ट पर विचार करने के पश्चात्और महाराष्ट्र सरकार से परामर्श करने के पश्चात् यह समाधान हो गया है , कि इससे संलग्न अनुसूची में वर्णित 131.99 हेक्टेयर (लगभग ) या 326.15 एकड़ ( लगभग ) माप वाली भूमि में खनिजों के खनन, खदान , बोर करने , जमीन खुदाई करने और खनिजों की तलाश करने , उन्हें प्राप्त करने , उन पर कार्य करने और उन्हें ले जाने के अधिकार अर्जित किए जाने चाहिए।

ख- भ रेखा प्लॉट संख्यांक 12/ 1-12/ 1 क-12/1 ख-- 12/ 1 ग-12/2 , 9, 10 , 22 , 20 , 17 , 18/1-18/2 की बाह्य सीमा के साथ -साथ ग्राम भानेगांव से होकर गुजरती है , नहर पार करती है और प्लॉट संख्या 32/ 1-32/2-32/3 , 33/1-33/2, 34, 35, 82/1-82/2 की बाह्य सीमा जो न्यू बीना ब्लॉक , नागपुर क्षेत्र का कोयला धारक क्षेत्र ( अर्जन और विकास ) अधिनियम, 1957 की धारा 9 की उप- धारा ( 1 ) के अधीन का.आ. संख्या 1254 तारीख 14 मई, 2004 द्वारा अधि- सूचित क्षेत्र की बाह्य सीमा भी है , के साथ- साथ आगे बढ़ती है और बिन्दु ' ग ' पर मिलती है।

अतः केन्द्रीय सरकार, उक्त अधिनियम की धारा 9 की उप- धारा ( i ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है , कि इससे संलग्न अनुसूची में वर्णित 131.99 हेक्टेयर ( लगभग ) या 326.15 एकड़ ( लगभग ) माप वाली भूमि में खनिजों के खनन, खदान, बोर करने , उनकी खुदाई करने और खनिजों की तलाश करने , उन्हें प्राप्त करने , उन पर कार्य करने और उन्हें ले जाने में अधिकार अर्जित किए जाते हैं।

ग-घ रेखा प्लॉट संख्यांक 82/1-82/2 , 81 , 80/1-80/2 , 80/3 , - 85/2, 76 , 77 / 1-77/ 2 , 60 , 61 , 54/ 1-54/ 2 , 53 , 52 , 51/1-51/2 की बाह्य सीमा के साथ - साथ ग्राम भानेगांव से होकर गुजरती है और बिन्दु ' रुघ ' पर मिलती है।

घ -क रेखा प्लॉट संख्यांक 51 /1-51/2 , की बाह्य सीमा के साथ-साथ गुजरती है, ग्राम भानेगांव से होकर सड़क पार करती है और फिर प्लॉट संख्यांक 49/1-49/2 , 48 , 1 की बाह्य सीमा से साथ- साथ आगे बढ़ती है और आरंभिक बिन्दु ' रुक ' पर मिलती है ।

इस अधिसूचना के अंतर्गत आने वाले क्षेत्र के रेखांक सं. सी. -1 (ई ) III/एफआर/ 750-0407 तारीख10 अप्रैल , 2007 का निरीक्षण कलेक्टर , नागपुर ( महाराष्ट्र ) के कार्यालय में या कोयला नियंत्रक , 1 काउंसिल हाउस स्ट्रीट , कोलकाता पिन-700001 ) के कार्यालय में या वेस्टर्न कोलफील्ड्स लिमिटेड ( राजस्व विभाग ) , कोल इस्टेट, सिविल लाइन्स, नागपुर -440001 ( महाराष्ट्र) के कार्यालय में किया जा सकताहै ।

[सं. 43015/22/2004- पीआरआईडब्ल्यू] एम. शहाबुद्दीन , अवर सचिव अनुसूची

बीना विस्तार खंड़

MINISTRY OF COAL

नागपुर क्षेत्र , जिला नागपुर ( महाराष्ट्र)

New Delhi , the 12th September , 2007

(रेखांक सं.सी. - 1 ( ई ) III/एफआर/750-0407 तारीख 10 अप्रैल, 2007)

सभी अधिकार

क्रम ग्राम का पटवारी तहसील जिला

संख्या नाम

क्षेत्र टिप्पणी हेक्टर में

सर्किल संख्या

1 भानेगांव 54 सावनेर नागपुर 131.99 भाग

कुल क्षेत्र : -131.99 हेक्टर ( लगभग )

या

326.15 एकड़ ( लगभग )

S.O. 2587.-Whereas by the notification of the Government of India in the Ministry of Coal number S.O. 3848 dated the 10th October , 2005 issued under Sub- section (1) ofSection 7 of the Coal Bearing Areas (Acquisition and development) Act, 1957 (20 of 1957) ( hereinafter referredto as the said Act) and published in the Gazette of India , Part- II , Section 3 , Sub- section (ii ) , dated the 22nd October , 2005, the Central Government gave notice of its intention to acquire the rights to mine , quarry , bore , dig and search for winwork and carry away minerals in the lands measuring 135.02 hectares ( approximately ) or 333.63 acres (approximately) in the locality as described in the Schedule appended to that notification ;

6913

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

[भाग II-खण्ड 3 (ii) ]

And whereas the competent authority , in pursuance of section 8 of the said Act, has made his report to the Central Government ;

And whereas the Central Government , after considering the report aforesaid and after consulting the Government of Maharashtra , is satisfied that the rights to mine, quarry, bore , dig and search for win work and carry away minerals in lands measuring 131.99 hectares (approximately) or 326.15 acres (approximately) described in the Schedule apended hereto, should be acquired ;

Now, therefore , in exercise of the powers conferred by Sub -section ( 1) of Section 9 of the said Act, the Central Government hereby declares that the rights to mine, quarry , bore, dig and search for win work and carry away minerals in the lands measuring 131.99 hectares (approximately ) or 326.15 acres ( approximately ) described in Schedule appended hereto are hereby acquired ;

2.The plan bearing number C- I (E) III /FR/750-0407 dated the 10th April, 2007 of the area covered by this notification may be inspected in the office of the collector , Nagpur (Maharashtra ) or in the office of the Coal Controller, I,Council House Street , Kolkata (Pin 700001 ) or in the office ofthe Western Coalfields Limited ( Revenue Department) , CoalEstate , Civil Lines , Nagpur -440001 (Maharashtra) .

SCHEDULE

Bina Extension Block

NagpurArea

District Nagpur (Maharashtra)

(Plan No. C- 1 (E) III /FR/7500-407 dated the 10th April , 2006)

All Rights :-

District

Tahsil

Area in Remarkes Hectares Name of village

Serial No.

Palwari circle number

Nagpur 131.99 Part

Saoner

1 Bhane- 54 gaon

Total area : 13199 hectares (approximately) 1B -12/1C- 12/2 , 9 , 22, 20 , 17, crosses Cannel the proceeds along the outer boundary of plot numbers 32/1-32/2-32/3, 33/1-33/2,34,35,82/1-82/ 2, which is also a outer boundary of area notified u/s. 9(1) of the CBA (A& D ) Act , 1957 vide S.O. No. 1254 dated 14/05/2004 of New Bina Block, Nagpur Area and meets at point ' C' .

C-D Line passes through village Bhaneegaon along the outer boundary of plot numbers 82/ 1-82/2,81 , 80/1-80/2, 80/3 , 85/2, 76, 77/ 1-77/2,60, 61, 54/1-54/ 2, 53 , 52, 51 /1-51 /2 , and meets at points 'D' .

D-A Line passes through village Bhanegaon along the outer boundary of plot numbers 51/ 1-51 /2, crosses road then proceeds along the outer boundary of plot numbers 48, 49/1-49/2 and meets at starting point 'A' .

[No.43015/22/2004- PRIW]

M. SHAHABUDEEN , Under Secy.

उपभोक्ता मामले , खाद्य और सार्वजनिक वितरण मंत्रालय (उपभोक्ता मामले विभाग )

भारतीय मानक ब्यूरो

नई दिल्ली, 3 सितम्बर , 2007

का.आ. 2588.- भारतीय मानक ब्यूरो नियम , 1987 के नियम 7 के उपनियम ( 1 ) के खण्ड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि अनुसूची में दिए गए मानक (को) में संशोधन किया गया/किए गए हैं :

अनुसूची

संशोधन की संशोधन लागू संख्या और होने की तिथि तिथि क्रम संशोधित भारतीय मानक संख्या ( को) की संख्या वर्ष औरशीर्षक

संशोधन 21अगस्त,

2007

संख्या 2

अगस्त, 2007 1 आईएस 5504: 1997- सर्पित वैल्डित पाइप विशिष्टि ( पहला पुनरीक्षीण)

or

326.15 acres

(approximately)

Plot numbers acquired in village Bhanegaon:

1, 2, 3 , 4 , 5, 6/1A- 6 /1B- 6/2, 7, 8 , 9, 10, 12/1-12/1A- 12/18-12/ 1C- 12/2, 17, 18/ 1-18 /2-19/1-19/2, 20, 21 , 22, 23 , 24, 25,26,27, 28, 29/1-29/2,30/1-30/2, 31 , 32/ 1-32/2-32/3, 33/1-33/2, 34, 35, 36, 37, 38/1A, 38/ 1B-38/2A-38/2B-38/2, 39 , 40/1-40/2, 41, 42, 43/1-43/2,44 , 45/1-45/2, 46, 47, 48, 49 ,/1-49/2, 50/1-50/2, 51/ 1-51/2, 52, 53, 54/1-54/2,55, 56, 57, 58, 59,60, 61 , 76, 77/1-77/ 2,78, 79, 80/1-80/2-80/3 , 81 , 82/1-82/2, 85/2, Road (part ) .

Boundary description :

A-B Line starts from point ' A' and passes through village Bhanegaon along the outer boundary of plot numbers 1, 2, 3 , 4, 5, 6/1A-6/1B-6/2, 7 , 8 , 12/1- 12/ 1A- 12/ 1B- 12/1C- 12/2 and meets at point 'B' .

B-C Line passes through village Bhanegaon along the outer boundary. of plot numbers 12/1-12/ 1A/-12/ 3677 G1/07-2

इन संशोधनों की प्रतियां भारतीय मानक की प्रतियां भारतीय मानक ब्यूरो , मानक भवन , 9 बहादुर शाह जफर मार्ग, नई दिल्ली-110002 , क्षेत्रीय कार्यालयों नई दिल्ली, कोलकाता , चण्डीगढ़ , चेन्नई, मुम्बई तथा शाखा कार्यालयों अहमदाबाद , बंगलौर , भोपाल , भुर्वनेश्वर , कोयम्बतूर , गुवाहाटी , हैदराबाद , जयपुर, कानपुर , पटना , पुणे तथा तिरुवनन्तापुरम में बिक्री हेतु उपलब्ध है।

[संदर्भ : एमटीडी 19/टी-24 ] डॉ. ( श्रीमती ) स्नेह भाटला , वैज्ञानिक एफ एवं प्रमुख (एमटीडी) MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION (Department of Consumer Affairs ) BUREAU OF INDIAN STANDARDS New Delhi , the 3rd September , 2007 S.O. 2588.- In pursuance of clause (b ) of sub - rule (1) ofRules (1) of Rule 7 of the Bureau of Indian Standards rules ,, 1987 , the Bureau of Indian Standards hereby notifies 6914

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3 ( ii ) ]

that amendments to the Indian Standards , particulars of which are given in the Schedule hereto annexed have been issued.

thatthe Indian Standards , particulars of which are given in the Schedule hereto annexed have been established on the date indicated against each :

SCHEDULE

Sl . No. No. and Year of the Indian Standards

Sl . No.No. and Year of the Indian Standard( s ) amendment (s )

No. and year Date from of the amendment amendment which the shall have effect No. and year Date from of the which the amendment amendment shall have effect

(2)

(1)

(3)

(4)

(1) (2)

(3)

(4) 1

IS 5504: 1997 Specification for spiral welded pipes ( first revision)

Amendment 21 August , no..2 August . 2007 2007

2007 Amendment 10 August , No. 1 March , 2007

IS 7285 (Part 1 ) : 2004 Refillable seamless steel gas cylinders Specification Part 1 Normalized steel cylinders ( third Revision )

Copy of this Standard is available for sale with the Bureau of Indian Standards , Manak Bhavan , 9 Bahadur Shah Zafar Marg , New Delhi - 110002 and Regional Offices: New Delhi , Kolkatta , Chandigarh , Chennai , Mumbai and also Branch Offices : Ahmedabad, bangalore , Bhopal , Bhubaneshwar , Coimbatore , Guwahati , Hyderabad , Jaipur , Kanpur , Nagpur , Patna , Pune , Thiruvananthapuram.

[Ref.: MTD 19/T -24]

DR. (MRS . ) SNEH BHATLA, Scientist ' F ' & Head

Copy of this Standard is available for sale with the Bureau of Indian Standards , Manak Bhavan , 9 Bahadur Shah Zafar Marg , New Delhi - 110002 and Regional Offices: New Delhi , Kolkata , Chandigarh , Chennai , Mumbai and also Branch Offices: Ahmedabad , Bangalore , Bhopal , Bhubaneshwar, Coimbatore , Guwahati , Hyderabad, Jaipur , Kanpur , Nagpur , Patna , Pune, Thiruvananthapuram .

(MetEngg.)

[Ref.: MED/G- 2 : 1 ] नई दिल्ली , 3 सितम्बर , 2007

C. K. VEDA, Sc . F & Head (Mechanical

Engineering)

नई दिल्ली , 3 सितम्बर , 2007 का.आ. 2589.- भारतीय मानक ब्यूरो नियम , 1987 के नियम 7 के उपनियम ( 1 ) के खण्ड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि नीचे अनुसूची में दिए गए मानक (को) में संशोधन किया गया/किए गए हैं :

अनुसूची

का.आ. 2590.- भारतीय मानक ब्यूरो नियम , 1987 के नियम 7 के उपनियम ( 1 ) के खण्ड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूसचित करता है कि जिन भारतीय मानकों के विवरण नीचे. अनुसूची में दिए गए हैं वे स्थापित हो गए हैं । क्रम संशोधित भारतीय मानक संख्या की संख्या और वर्ष

संशोधन लागू

होने की

अनुसूची

संशोधन की संख्या और तिथि

तिथि

(1)

स्थापित (2)

नए भारतीय (3)

(4) क्रम स्थापित भारतीय मानक (कों ) संख्या की संख्या वर्ष और शीर्षक

तिथि

10 अगस्त,

अतिक्रमित

2007

भारतीय मानक 1 आईएस 7285 ( भाग 2 ) : 2004 फिर से भरे जा सकने वाले जोड़ रहित इस्पात के गैस सिलेंडर

संशोधन संख्या 1 मार्च 2007

अथवामानकों,

यदिकोई हो, विशिष्टि भाग 1 प्रसामान्यीकृत इस्पात सिलैंडर

(तीसरा पुनरीक्षण)

मानक द्वारा की संख्या और वर्ष

(1) (2)

(3)

(4)

आईएस 1 सितम्बर ,

2007 इस संशोधनों की प्रतियां भारतीय मानक ब्यूरो , मानक भवन , 9 बहादुर शाह जफर मार्ग , नई दिल्ली -110002 , क्षेत्रीय कार्यालयों : नई दिल्ली, कोलकाता , चण्डीगढ़ , चेन्नई, मुम्बई तथा शाखा कार्यालयों : अहमदाबाद , बंगलौर , भोपाल , भुवनेश्वर, कोयम्बतूर, गुवाहाटी , हैदराबाद, जयपुर , कानपुर , पटना , नागपुर , पुणे तथा तिरुवनन्तापुरम में बिक्री हेतु उपलब्ध है।

1 आईएस 5456:2006 निश्चित विस्थापन टाइप वायु कम्प्रेसर और एक्जास्टर के परीक्षण रीति संहिता ( दूसरा पुनरीक्षण )

[संदर्भः एमईडी/जी-2: 1 ]

निश्चित विस्थापन टाइप

वायु कम्प्रेसर सी. के. वेदा, वैज्ञा- एफ एवं प्रमुख ( यांत्रिक इंजीनियरिंग )

और एक्जास्टर New Delhi , the 3rd September, 2007

के परीक्षण रीति S.O. 2589. In pursuance of clause (b) of sub - rule (1) ofRules ( 1 ) of Rule 7 of the Bureau of Indian Standards rules,, 1987 , the Bureau of Indian Standards hereby notifies

5456: 1985 संहिता ( पहला पुनरीक्षण) 6915

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[ भाग II- खण्ड 3 (ii) ]

नई दिल्ली , 5 सितम्बर , 2007

का.आ. 2591.- भारतीय मानक ब्यूरो नियम , 1987 के नियम 7 के उपनियम ( 1 ) के खण्ड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि नीचे अनुसूची में दिए गए मानक (कों) में संशोधन किया गया/किए गए हैं :

अनुसूची

इस भारतीय मानक की प्रतियां भारतीय मानक ब्यूरो , मानक भवन , 9 बहादुर शाह जफर मार्ग , नई दिल्ली -110002 , क्षेत्रीय कार्यालयों : नई दिल्ली , कोलकाता , चण्डीगढ़ , चेन्नई , मुम्बई तथा शाखा कार्यालयों : अहमदाबाद, बंगलौर , भोपाल , भुवनेश्वर, कोयम्बतूर , गुवाहाटी , हैदराबाद , जयपुर , कानपुर , नागपुर , पटना, पुणे तथां तिरुवनन्तापुरम में बिक्री हेतु उपलब्ध हैं।

[संदर्भ : एमईडी/जी-2: 1 ]

क्रम संशोधित भारतीय मानक संख्या की संख्या और वर्ष

संशोधन लागू होने की तिथि:

संशोधन की संख्या और तिथि

सी. के. वेदा, वैज्ञा- एफ एवं प्रमुख ( यांत्रिक इंजीनियरिंग )

(4)

(2)

(3)

(1)

2 अप्रैल , 2007 1 अक्टूबर ,

1 आईएस 4985 : 2000

New Delhi , the 3rd September, 2007

2007 S.O. 2590.- In pursuance of clause (b ) of sub - rule (1) ofRules (1 ) of Rule 7 of the Bureau of Indian Standards rules ,, 1987 , the Bureau of Indian Standards hereby notifies that the Indian Standards , particulars of which are given in the Schedule hereto annexed have been established on the date indicated against each :

इन संशोधनों की प्रतियां भारतीय मानक ब्यूरो , मानक भवन , 9 बहादुर शाह जफर मार्ग , नई दिल्ली -110002 , क्षेत्रीय कार्यालयों : नई दिल्ली , कोलकाता , चण्डीगढ़ , चेन्नई , मुम्बई तथा शाखा कार्यालयों : अहमदाबाद , बंगलौर , भोपाल , भुवनेश्वर , कोयम्बतूर , गुवाहाटी , हैदराबाद , जयपुर , कानपुर, नागपुर , पटना , पुणे तथा तिरुवनन्तापुरम में बिक्री हेतु उपलब्ध है ।

SCHEDULE

[संदर्भ: सीईडी/राजपत्र] No. and year

Date of

Established

SI . No. No. and Year of the Indian Standards Established

ए. के. सैनी , वैज्ञानिक ' एफ ' एवं प्रमुख (सिविल इंजीनियरी )

New Delhi , the 5th September , 2007 Standards , if any, Superseded bythe New

ofIndian Indian

Standard

(4)

(3)

(1) (2)

S.O. 2591. In pursuance of clause (b) of sub - rule (1) ofRules ( 1 ) of Rule 7 of the Bureau of Indian Standards rules, 1987, the Bureau of Indian Standards hereby notifies that amendments to the Indian Standards , particulars of which are given in the Schedule hereto annexed have been issued:

SCHEDULE

IS 5456: 1985

1 Sept-

ember ,

Date from

Sl . No. No. and Year of the Indian No. and year

2007

which the

of the

Standards

amendment

IS 5456 : 2006 Testing of positive displacement type air compressors and exhausters- Code of Practice (second revision)

amendment shall have effect Testing of posi- tivedisplacement type air compres- sors and exhausters- Code ofPractice (firstrevision)

(4)

(3)

(1) (2)

1 IS 4985:2000

2, April , 2007 1October, 2007 Copy of these Standard is available for sale with the Bureau of Indian Standards , Manak Bhavan , 9 Bahadur Shah Zafar Marg, New Delhi - 110002 and Regional Offices: New Delhi , Kolkata , Chandigarh , Chennai , Mumbai and also Branch Offices : Ahmedabad , Bangalore, Bhopal , Bhubanesh war, Coimbatore , Guwahati , Hyderabad , Jaipur , Kanpur , Nagpur , Patna , Pune , Thiruvananthapuram .

[Ref.:MED/G - 2: 1 ]

Copy of this amendment is available for sale with the Bureau of Indian Standards , Manak Bhavan , 9 Bahadur Shah Zafar Marg , New Delhi - 110002 and Regional Offices: New Delhi , Kolkata, Chandigarh , Chennai , Mumbai and also Branch Offices : Ahmedabad , Bangalore , Bhopal , Bhubaneshwar , Coimbatore , Guwahati , Hyderabad , Jaipur, Kanpur , Nagpur , Patna , Pune , Thiruvananthapuram .

[Ref.: CED/Gazette] C. K. VEDA, Sc . F & Head (Mechanical

A. K. SAINI , Sc . ' F ' & Head (Civil Engg.)

Engineering)

6916

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3 (ii ) ]

पेट्रोलियम और प्राकृतिक गैस मंत्रालय

नई दिल्ली, 28 मई , 2007

का.आ. 2592.- सार्वजनिक परिसर ( अनधिकृत कब्जाधारियों की बेदखली ) अधिनियम , 1971 ( 1971 का 40 ) की धारा 3 द्वारा प्राधि- कृत शक्तियों का प्रयोग तथा पेट्रोलियम और प्राकृतिक गैस मंत्रालय , भारत सरकार की दिनांक 12-11-1991 की अधिसूचना संख्या 25015/1/91- ओ.आर. 1 का प्रतिस्थापन करते हुए भारत सरकार नीचे दी गई सारणी के कॉलम ( 2 ) में अधिकारियों को भारत सरकार के राजपत्रित अधिकारियों के समकक्ष होने के नाते सम्पदा अधिकारी नियुक्त करती है । ये अधिकारी उक्त अधिनियम में सम्पदा अधिकारी के लिए निर्धारित शक्तियों का प्रयोग , उक्त सारणी के कॉलम 3 में वर्णित सार्वजनिक परिसरों के लिए सीमित स्थानीय क्षेत्राधिकार के अंतर्गत अपने कार्यपालन के लिए करेंगे ।

सारणी

क्रम यूनिट/कार्यालय का नाम अधिकारी का पद संख्या

'सार्वजनिक परिसरों की श्रेणियों तथा स्थानीय क्षेत्राधिकार की सीमाएं

1. नईदिल्ली

वरिष्ठ प्रशासन व कल्याण प्रबंधक , इंडियन ऑयल कॉर्पोरेशन लिमिटेड , स्कोप कॉम्पलेक्स, कोर-2 , 7 इंस्टीट्यूशनल एरिया , लोधी रोड , नई दिल्ली-3

'केन्द्रशासित क्षेत्र दिल्ली तथा उत्तर प्रदेश के नोएडा (नवीन ओखला औद्योगिक विकास प्राधिकरण ) के अंतर्गत स्थित इंडियन ऑयल कॉर्पोरेशन लि. के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर 2. गुवाहाटी रिफाइनरी वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो. लिमिटेड, गुवाहाटी रिफाइनरी डाक घर नूनमाटी, गुवाहाटी -781020

असमके गुवाहाटी शहर के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

3. बरौनी रिफाइनरी

बिहार राज्य के अंदर तथा आसपास इंडियन

ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो. लिमिटेड, बरौनी रिफाइनरी पी.ओ. बरौनी रिफाइनरी , जिला बेगूसराय , बिहार-8611164

4. गुजरात रिफाइनरी

गुजरात राज्य के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो. लिमिटेड, गुजरात रिफाइनरी डाक घर जवाहर नगर , जिला वडोदरा , गुजरात-391320

5. हल्दिया रिफाइनरी

पश्चिम बंगाल राज्य के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो. लिमिटेड, हल्दिया रिफाइनरी, जिला मिदनापुर , पश्चिमी बंगाल-725606

6. मथुरा रिफाइनरी, वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो लिमिटेड, मथुरा रिफाइनरी, मथुरा-281005 ( उत्तर प्रदेश )

नवीन ओखला औद्योगिक विकास प्राधिकरण ( नोएडा) को छोड़कर उत्तर प्रदेश राज्य के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

7. पानीपत रिफाइनरी वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो. लिमिटेड, पानीपत रिफाइनरी , हरियाणा-132140

हरियाणा राज्य के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

8. असम रिफाइनरी

असम राज्य के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो. लिमिटेड, डिग्बोई रिफाइनरी , डिग्बोई -786171 ( असम)

9. पारादीप रिफाइनरी . परियोजना

उड़ीसा राज्य के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

वरिष्ठ मानव संसाधन प्रबंधक , इंडियन ऑयल कॉर्पो. लिमिटेड, पारादीप रिफाइनरी , बिजय चन्द्रपुर , पारादीप , जगदीश पुर , उड़ीसा-754142

10. कोलकाता ( समन्वय कार्यालय

कोलकाता शहर के अंदर तथा आसपास इंडियन ऑयल कॉर्पोरेशन लिमिटेड के प्रशासनिक नियंत्रण वाले सार्वजनिक परिसर

वरिष्ठ मानव संसाधन प्रबंधक, इंडियन ऑयल कॉपों. लिमिटेड , इंडियन ऑयल भवन , सेंट्रल विंग , छठा माला -2 , गरियाहाट ग्रेड ( दक्षिण ) कोलकाता-700068

[फा. संख्या आर-25011/1/2007- ओआर-2 ]

एस. के. चिटकारा , अवर सचिव 6917

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

[भाग II- खण्ड 3 ( ii ) ]

MINISTRY OF PETROLEUM AND NATURAL GAS

New Delhi , the 28th May , 2007

S.O. 2592. In exercise of the powers conferred by Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971 ) and in supersession of the notification of the Government of India in the Ministry of Petroleum and Natural Gas No. R- 25015/ 1 /91 - OR.I dated the Twelfth November , 1991, the Central Government hereby appoints the officers mentioned in column (2) of the table below, being officers of equivalent rank of gazetted officers of the Government, to be Estate Officers for the purpose of the said Act , who shall exercise the powers conferred and perform the duties imposed on Estate Officers by or under the said Act, within the local limits of their respective jurisdiction in respect ofthe public premises specified in the corresponding entry in column (3 ) of the said table .

TABLE

S. No. Name of the Unit/Officer Designation of the Officer

Categories ofpublic premises and local limits ofjurisdiction

1 2

1. NewDelhi

Public premises under the administrative control of Indian Oil Corporation Ltd. , within theUnion Territory of Delhi and New Okhla Industrial Development Authority ( NOIDA) ofthe State of Uttar Pradesh .

Sr. Administration and Welfare Manager , Indian Oil Corporation Ltd. , Refineries HQ, Core - 2, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi - 110003

2. Guwahati Refinery

Public premises under the administrative control of Indian Oil Corporation Ltd. , within and around the city of Guwahati , Assam .

Sr.Human Resources Manager , Indian OilCorporation Ltd. , Guwahati Refinery, P.O. Noonmati , Guwahati - 781020

3. BarauniRefinery

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the State ofBihar .

Sr.Human Resources Manager , Indian OilCorporation Ltd. , Barauni Refinery, P.O. Barauni Refinery , Distt . Begusarai , Bihar-861114

4. Gujarat Refinery

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the State of Gujarat.

Sr.Human Resources Manager , Indian OilCorporation Ltd. , Gujarat Refinery , P.O. Jawahar Nagar , Distt . Vadodara, Gujarat-391320

5. HaldiaRefinery

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the State of West Bengal .

Sr.Human Resources Manager , Indian Oil Corporation Ltd. , Haldia Refinery , Distt.Midnapur , West Bengal - 721606

6. Mathura Refinery

Sr. Human Resources Manager , Indian OilCorporation Ltd. , Mathura Refinery , P.O. Mathura Refinery , Mathura Uttar Pradesh- 281005

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the State of Uttar Pradesh except for the New Okhla Industrial Development Authority (NOIDA) area .

7. PanipatRefinery

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the State of Haryana .

Sr. Human Resources Manager , Indian Oil Corporation Ltd. , Panipat Refinery , P.O. Panipat Refinery , Panipat Haryana- 132140

8. Assam Oil Division

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the State of Assam .

Sr.Human Resources Manager , Indian OilCorporation Ltd. , Assam Oil Division , Digboi Refinery, Digboi - 786171

9. Paradip Refinery Project

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the State of Orissa .

Sr.Manager (Admn. ) , Indian Oil Corporation Ltd. , Paradip Refinery, Bijaychandrapur, Paradip, Distt. Jagatsinghpur , Orissa- 754 142

10. Kolkata (Liaison Office )

Public premises under the administrative control of Indian Oil Corporation Ltd. , within the city of Kolkata .

Sr. Human Resources Manager , Indian OilCorporation Ltd. , Indian Oil Bhavan Central Wing, 6th Floor, 2, Gariahat Road (South ) , Kolkata-700068

[F. No. R- 25011 / 1 /2007 - OR 2 ] S. K. CHITKARA , Under Secy .

6918

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3 ( ii ) ]

नई दिल्ली , 5 सितम्बर , 2007

का.आ. 2593.- केन्द्रीय सरकार, पैट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 (1962का 50 ) की धारा 2 के खण्ड ( अ ) के अनुसरण में तारीख 6 मार्च, 2007 को भारत के राजपत्र में प्रकाशित , भारत सरकार के पैट्रोलियम और प्राकृतिक गैस मंत्रालय की अधिसूचना संख्या का.आ. 712 तारीख 10 मार्च , 2007 में निम्नलिखित रूप से संशोधन करती है , अर्थात्:-

उक्त अधिसूचना की अनुसूची में , स्तम्भ 1 में , " श्री एस. सुब्रामन्यम राजू, डेपुटी कलेक्टर, " शब्दों के स्थान पर , " श्री एल. वेंकट सुबैया , डेपुटी कलेक्टर ", शब्द रखे जाएंगे ।

[सं. आर--25011 / 10/2006- ओ.आर. - 1 ] एस. के. चिटकारा , अवर सचिव

NewDelhi , the 5th September , 2007

S.O. 2593.-In pursuance of clause ( a) of Section 2 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962) , the Central Government hereby makes the following amendments in the notification of theGovernment of India in the Ministry of Petroleum and Natural Gas number S.O. 712 dated 6 March, 2007 , published in the Gazette of India on the 10th March , 2007 , namely :--

Inthe said notification , in the Schedule , in column 1 , for the words , " Shri S. Subramanyam Raju , Deputy Collector, " the words " Shri L. Venkata Subbaiah , Deputy Collector " shall be substituted.

[No. R-25011 /10/2006- OR- I] S. K. CHITKARA , Under Secy .

नई दिल्ली , 5 सितम्बर , 2007

का.आ. 2594.- केन्द्रीय सरकार को यह प्रतीत होता है कि लोकहित में यह आवश्यक है कि कर्नाटक राज्य में देवनगोंदी से नया बेंगलोर अन्तर्राष्ट्रीय एअरपोर्ट, देवनहल्ली, तक पेट्रोलियम उत्पादन के परिवहन के लिए इंडियन ऑयल कार्पोरेशन लिमिटेड द्वारा पाइपलाइन बिछाई जानी चाहिए।

और ऐसा प्रतीत होता है कि ऐसी पाइपलाइन बिछाने के प्रयोजन के लिए इस अधिसूचना से उपाबद्ध अनुसूची में वर्णित भूमि में उपयोग के अधिकार का अर्जन करना आवश्यक है।

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

उक्त अनुसूची में हितबद्ध कोई व्यक्ति, उस तारीख से , जिसको राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियां साधारण जनता को उपलब्ध करा दी जाती हैं, इक्कीस दिनों के भीतर, भूमि के उपयोग के अधिकार का अर्जन या भूमि के नीचे पाइपलाइन बिछाने के संबंध में लिखित रूप में आक्षेप श्री आर. आर. जन्नू, सक्षम प्राधिकारी ( कर्नाटक ) , इंडियन ऑयल कार्पोरेशन लिमिटेड, देवनगोंदी से नया बेंगलोर अन्तर्राष्ट्रीय एअरपोर्ट, देवनहल्ली तक एटीएफ पाइपलाइन परियोजना , नं. 719 , ग्राउंड फ्लोर , 4 क्रास , 7 , मैन कल्याण नगर , 1 ब्लाक, बेंगलोर-560043 कर्नाटक को भेज सकेगा ।

अनुसूची

तालुका: होसकोटे जिला : बेंगलोर ग्रामीण

राज्य : कर्नाटक

गांव का नाम

सर्वे नंबर

हिस्सा नंबर

हेक्टर

क्षेत्रफल आर

वर्ग मीटर 1

6 होब्ली: कसबा दोड्डहुल्लूर

49 61

15 61

80 76

27 76

52 6919

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24 , 1929

[ भाग II-खण्ड 3 (ii) ]

राज्य: कर्नाटक .

जिला : बेंगलोर शहरी

तालुका: यलहंका

क्षेत्रफल

हिस्सानंबर

सर्वे नंबर

गांव का नाम

वर्ग मीटर

आर

हेक्टर

होब्ली : जाला

उनसुरू

[फा. सं. आर-25011/3/2007-ओ.आर. - 1] .

एस. के. चिटकारा , अवर सचिव

New Delhi , the 5th September , 2007

S.O. 2594. Whereas , it appears to the Central Government, that it is necessary in the public interest that for the transportation of petroleum products from Devanagondhi to New Bangalore International Airport , Devanahalli in the State ofKarnataka , a pipeline should be laid by the Indian Oil Corporation Limited.

And, whereas , it appears that for the purpose of laying such pipeline , it is necessary to acquire the right of user in the land described in the schedule annexed to this notification .

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

Anyperson interested in the land described in the said Schedule may, within twenty one days from the date on which the copies of this notification , as published in the Gazette of India , are made available to the general public, object in writing to the acquisition of the right of user therein or laying of the pipeline under the land , to Shri R.R. Jannu , Competent Authority (Karnataka ), Indian Oil Corporation Limited , Devanagaondhi to New Bangalore International Airport, Devanahalli ATF Pipeline Project , No. 719, Ground Floor , 4th Cross , 7th Main, Kalyana Nagar, 1st Block Bangalore - 560043 (Karnataka).

SCHEDULE

State : Karnataka

Taluk: Hosakote

District : Bangalore Rural

Survey No.

Name of the Village

Sub - Division No.

Hectare

Area Are

Sq.Mtr .

Hobli : Kasaba

49 DODDAHULLURU

State: Karnataka

Taluk: Yalahanka

District: Bangalore Urban

Name of the Village

SurveyNo.

Area Are

Sub-Division No.

Hectare

Sq. Mtr .

Hobli : Jala UNASURU

[File No. R- 25011/3 /2007 -OR- I ] S. K. CHITKARA, Under Secу.

6920

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3 ( ii ) ]

नई दिल्ली , 7 सितम्बर , 2007

का.आ. 2595. -केन्द्रीय सरकार को लोकहित में यह आवश्यक प्रतीत होता है कि गेल ( इण्डिया ) लिमिटेड द्वारा प्राकृतिक गैस के परिवहन के लिए गुजरात राज्य में दहेज- हजीरा उरान एवं स्पर पाइपलाइन बिछाई जानी चाहिए।

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

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

कोई व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है , उस तारीख से जिसको उक्त अधिनियम की धारा 3 की उप - धारा ( 1 ) के अधीन भारत के राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियां साधारण जनता को उपलब्ध करा दी जाती हैं , इक्कीस दिन के भीतर , भूमि के नीचे पाइपलाइन बिछाए जाने के संबंध में , श्री एस. के. राठौड़ , सक्षम प्राधिकारी , गेल ( इण्डिया ) लिमिटेड, इच्छापुर- मटेदल्ला रोड , पुरानी कॉलोनी , ओ. एन. जी. सी. सर्कल के पास , हजीरा, सूरत ( गुजरात ) को लिखित रूप में आक्षेप भेज सकेगा ।

अनुसूची

जिला

तहसील

गांव

सर्वे नं. आर.ओ.यू. अर्जित करने के लिए क्षेत्रफल (हैक्टेयर में) 1

5 भरूच

अंकलेश्वर

धतुरीया

0.18.00

54 579/ए 579/बी

0.12.00

[फाईल सं. एल-14014/12/2006-जी.पी. ( भाग- VII ]

एस. बी. मण्डल , अवर सचिव

New Delhi , the 7th September , 2007

S.O. 2595.-Whereas , it appears to the Central Government, that it is necessary in public interest that for transportation of natural gas through Dahej - Hazira - Uran and its spur pipelines project in the State of Gujarat , a pipeline should be laid by GAIL (India) Limited;

And,whereas it appears to the Central Government that for the purpose of laying the said pipeline , it is necessary to acquire the Right of User in the Land under which the said pipeline is proposed to be laid and which is described in the Schedule annexed to this notification .

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

Any person interested in the land described in the said Schedule may , within twenty one days from the date on which the copies of the notification issued under sub - section ( 1 ) of Section 3 of the said Act, as published in the Gazette of India are made available to the general public , object in writing to the laying of the pipeline under the land to Shri S.K. Rathod, Competent Authority , GAIL ( India ) Limited , Ichhapore - Mangdalla Road , Old Colony , Near ONGC Circle , Hazira , Surat (Gujarat).

SCHEDULE

District

Tehsil

Village

Survey No.

Area to be acquired for ROU ( In Hectare).

Bharuch

Ankleshwar

Dhanturiya

0.18.00

579/A 579/B

0.12.00

[File No. L- 14014/ 12/2006- G.P. (Part -VII]

S. B. MANDAL , Under Secy .

6921

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

[ भाग II- खण्ड 3 (ii) ]

नई दिल्ली , 10 सितम्बर , 2007

का.आ. 2596.- केन्द्रीय सरकार, पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) ( जिसे इसके पश्चात् उक्त अधिनियम कहा गया है ) की धारा 2 के खंड ( क ) के अनुसरण में नीचे दी गई सारिणी के स्तम्भ ( 1 ) में उल्लिखित व्यक्तियों को उक्त सारिणी के स्तम्भ ( 2 ) में उल्लिखित क्षेत्रों के बाबत उड़ीसा राज्य में अवस्थित विभिन्न उपभोक्ताओं तक वितरण के लिए मैसर्स रिलायंस इण्डस्ट्रीज लिमिटेड की आन्ध्र प्रदेश में संरचनाओं और उड़ीसा के अपतट में एन.ई.सी. 25 ब्लॉकों से 'उत्पादित प्राकृतिक गैस के परिवहन के लिए मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड ( आर.जी.टी.आई.एल. ) जिसका रजिस्ट्रीकृत कार्यालय 101, शिवम अपार्टमेंट , 9 - पटेल कालोनी , बेदी बन्दर रोड जामनगर -361008 ( गुजरात ) में है , द्वारा उनकी काकीनाडा - बासुदेबपुर- हावड़ा गैस इपलाइन बिछाने के लिए उक्त अधिनियम के अधीन सक्षम प्राधिकारियों के कृत्यों का पालन करने के लिए सक्षम प्राधिकारी के रूप में प्राधिकृत करती है ।

सारिणी

अधिकारिता के क्षेत्र

व्यक्तियों के नाम और पते

(2)

(1)

उड़ीसा राज्य के सभी जिले.

श्रीगोबिन्द च. पटेल

(उड़ीसा सरकार से सेवा निवृत संयुक्त सचिव )

द्वारा मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड

101 , शिवम अपार्टमेंट , 9 - पटेल कालोनी ,

बेदी बन्दर रोड, जामनगर-361008 ( गुजरात )

उड़ीसा राज्य के सभी जिले

2. श्री भास्कर च. त्रिपाठी

(उड़ीसा सरकार से सेवा निवृत ए.डी.एम. ) द्वारा मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड 101- शिवम अपार्टमेंट , 9 - पटेल कालोनी , बेदी बन्दर रोड, जामनगर-361008 ( गुजरात)

उड़ीसा राज्य के सभी जिले

3. श्री ब्रज सुन्दर पाण्डा

(उड़ीसा सरकार से सेवा निवृत ए.डी.एम. ) द्वारा मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड 101 , शिवम अपार्टमेंट , 9 - पटेल कालोनी, बेदी बन्दर रोड , जामनगर -361008 ( गुजरात )

[फा. सं. एल-14014/ 21/2007--जीपी ]

एस. बी. मण्डल , अवर सचिव

New Delhi , the 10th September , 2007

S.O. 2596.-In pursuance of clause (a) of Section 2 of the Petroleum and Minerals Piplines (Acquisition of Right of User in Land) Act , 1962 (50 of 1962) , (hereinafter called the said Act) , the Central Government hereby authorizes the persons mentioned in column ( 1 ) of the table given below to perform the functions of the Competent Authorities under the said Act for laying of the Kakinada -Basudebpur - Hawrah gas pipeline by M/s . Raliance Gas Transportation Infrastructure Limited , having its Registered Office at 101 , Shivam Apartments , 9 Patel Colony, Bedi Bunder Road , Jamnagar - 361008 ( Gujarat), for transporation of natural gas produced in the structures in Andhra Pradesh and NEC - 25 Offshore Orissa block of M/s . Reliance Industries Limited , for distribution to various consumers in the State of Orissa in respect of the areas mentioned in column (2) of the said table :-

TABLE

Areas of Jurisdication

Name and address of person

(2)

(1)

Alldistricts of Orissa

1. Sri Govind Ch . Patel

(Retired Joint Secretary to the Government ofOrissa)

C/o . M/s . Raliance Gas Transportation Infrastructure Limited, 101 , Shivam Apartments , 9- Patel Colony , Bedi Bunder Road , Jamnagar-361008 (Gujarat)

3677 G1/07-3 6922

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II SEC . 3 ( ii) ] (1)

All districts of Orissa

2. Shri Bhaskar Ch . Tripathy , (Retired ADM Government of Orissa)

C/o . M/s Raliance Gas Transportation Infrastructure Limited, 101, Shivam Apartments , 9, Patel Colony, Bedi Bunder Road, Jamnagar- 361008 (Gujarat )

All districts of Orissa

Shri Braja SunderPanda ,

(Retired ADM Government of Orissa) C/ o . M/s Raliance Gas Transportation Infrastructure Limited , 101, Shivam Apartments , 9 -Patel Colony , Bedi Bunder Road, Jamnagar- 361008 (Gujarat)

[F. No. L- 14014/21 /2007 -GP]

S. B. MANDAL , Under Secy .

नई दिल्ली , 10 सितम्बर , 2007

का.आ. 2597.-केन्द्रीय सरकार , पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962का 50 ) ( जिसे इसके पश्चात् उक्त अधिनियम कहा गया है ) की धारा 2 के खंड ( क ) के अनुसरण में नीचे दी गई सारिणी के स्तम्भ ( 1 ) में उल्लिखित व्यक्तियों को उक्त सारिणी के स्तम्भ ( 2 ) में उल्लिखित क्षेत्रों के बाबत पश्चिमी बंगाल राज्य में अवस्थित विभिन्न उपभोक्ताओं तक वितरण के लिए मैसर्स रिलायंस इण्डस्ट्रीज लिमिटेड की आन्ध्र प्रदेश में संरचनाओं और उड़ीसा केअपतट में एन.ई.सी. 25 ब्लॉकों से उत्पादित प्राकृतिक गैस के परिवहन के लिए मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड ( आर.जी.टी.आई.एल. ) जिसका रजिस्ट्रीकृत कार्यालय 101 , शिवम अपार्टमेंट , 9 - पटेल कालोनी , बेदी बन्दर रोड , जामनगर -361008 ( गुजरात ) में है, द्वारा उनकी काकीनाडा- बासुदेबपुर-हावड़ा गैस पाइपलाइन बिछाने के लिए उक्त अधिनियम के अधीन सक्षम प्राधिकारियों के कृत्यों का पालन करने के लिए सक्षम प्राधिकारी के रूप में प्राधिकृत करती है ।

सारिणी

व्यक्तियों के नाम और पते

अधिकारिता के क्षेत्र

(1)

(2)

1. श्री बारिद बरन गुहा,

पश्चिमी बंगाल राज्य के सभी जिले

[ पश्चिम बंगाल सरकार से सेवा निवृत विशेष भूमि

अधिग्रहण अधिकारी ( एच.आई.टी. ) हावड़ा]

द्वारा मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड

101 , शिवम अपार्टमेंट, 9 , पटेल कालोनी ,

बेदी बन्दर रोड, जामनगर -361008 ( गुजरात)

पश्चिमी बंगाल राज्य के सभी जिले

श्री इन्द्रजीत मजूमदार,

(पश्चिम बंगाल सरकार के पंचायत और ग्रामीण विकास

विभाग से सेवा निवृत संयुक्त निदेशक)

द्वारा मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड

101 , शिवम अपार्टमेंट , 9 - पटेल कालोनी ,

बेदी बन्दर रोड जामनगर -361008 ( गुजरात).

[फा. सं. एल-14014/20/2007- जीपी ]

एस. बी. मण्डल , अवर सचिव NewDelhi , the 10th September , 2007

S.O. 2597. In pursuance of clause (a ) of Section 2 of the Petroleum and Minerals Piplines ( Acquisition ofRight of User in Land) Act, 1962 (50 of 1962) , (hereinafter called the said Act) , the Central Government hereby authorizes the persons mentioned in column ( 1 ) of the table given below to perform the functions of the Competent Authorities under the said Act for laying of the Kakinada - Basudebpur -Hawrah gas pipeline by M/ s . Raliance Gas Transportation Infrastructure Limited, having its Registered Office at 101 , Shivam Apartments , 9 -Patel Colony, Bedi Bunder Road, Jamnagar- 361008 (Gujarat ) , for 6923

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[ भाग II- खण्ड 3 ( ii) ]

transportation of natural gas produced in the structures in Andhra Pradesh and NEC - 25 Offshore Orissa Block of M/s . Reliance Industries Limited , for distribution to various consumers in the State of West Bengal in respect of the areas mentioned in column ( 2) of the said table:-

TABLE

Areas of Jurisdiction

Name and address of person

(2)

(1)

All districts of West Bengal 1. Shri Barid Baran Guha ,

[Retired Special Land Acquisition Officer (HIT) , Howarh , Government of West Bengal C/o M/s . Raliance Gas Transportation Infrastructure Limited, 101, Shivam Apartments , 9 - Patel Colony, Bedi Bunder Road, Jamnagar -361008 (Gujarat)

All districts of West Bengal 2. Shri Indrajit Majumdar , (Retired Joint Director , Panchayat and Rural Development Department , Government of West Bengal ) C/o M/ s . Raliance Gas Transportation Infrastructure Limited, 101 , Shivam Apartments , 9- Patel Colony , Bedi Bunder Road, Jamnagar- 361008 (Gujarat)

[F. No. L- 14014/20/2007 -GP]

S. B. MANDAL, Under Secy.

नई दिल्ली, 10 सितम्बर , 2007

का.आ. 2598.- केन्द्रीय सरकार को लोक हित में यह आवश्यक प्रतीत होता है कि उत्तर प्रदेश राज्य में दादरी से हरियाणा राज्य में पानीपत तक प्राकृतिक गैस के परिवहन के लिए इण्डियन ऑयल कारपोरेशन लिमिटेड द्वारा " आर. एल. एन.जी. स्पर पाइपलाइन " के कार्यान्वयन हेतु एक शाखा पाइपलाइन बिछाई जानी चाहिए;

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

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

कोई भी व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है , उस तारीख से जिसको भारत के राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियां साधारण जनता को उपलब्ध करा दी जाती है , इक्कीस दिन के भीतर , उसमें उपयोग के अधिकार का अर्जन करने या भूमि के नीचे पाइपलाईन बिछाए जाने के संबंध में , श्री बीरेन्द्र कुमार गुप्ता , वरिष्ठ भूमि अर्जन अधिकारी /सक्षम प्राधिकारी , इंडियन ऑयल कारपोरेशन लिमिटेड , आर-2/18 , राजनगर , गाजियाबाद ( उत्तर प्रदेश ) को लिखित रूप में आक्षेप भेज सकेगा।

अनुसूची

राज्य : उत्तर प्रदेश

जिला : बागपत

तहसील : बड़ौत

क्षेत्रफल

खसरा नं.

गांव का नाम

वर्गमीटर

हेक्टेयर

एयर

269

1. कोताना बांगर

438

182

2. जागोस बांगर

[फा. सं. एल-14014/30/2006- जी.पी. ] एस. बी. मण्डल , अवर सचिव 6924

[PART II SEC. 3(ii)] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

New Delhi , the 10th September , 2007

S.O. 2598.-Whereas , it appears to Central Government, that it is necessary in public interest that for transportation ofnatural gas from Dadri in the State ofUttar Pradesh to Panipat in the State of Haryana , " R- LNG Spur pipline from Dadri to Panipat " , should be laid by Indian Oil Corporation Limited;

And, whereas it appears to Central Government that for the purpose of laying the said pipeline , it is necessary to acquire the Right of User in the land under which the said pipeline is proposed to be laid and which is described in the Schedule annexed to this notification . Now, therefore, in exercise of powers conferred by sub -section (1) of Section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act , 1962, (5 of 1962) the Central Government hereby declares its intention to acquire the right of user therein.

Any person interested in the land described in the said Schedule may, within twenty one days from the date on which the copies of the notification issued under sub - section (1 ) of Section 3 of the said Act , as published in the Gazette of India are made available to the general public , object in writing to the acquisition of the right of user therein or laying of the pipeline under the land to Shri Birendra Kumar Gupta . Sr. Land Acquisition Officer/Competent Authority, Indian Oil Corporation Limited, R- 2/ 18 Raj Nagar, Ghaziabad , (Uttar Pradesh) .

SCHEDULE

Tehsil : Baraut

State : Uttar Pradesh

District : Baghpat

Khasra No.

Name ofVillage

Area Are

Hectare

Square Meter

269

1. KotanaBangar

438

182

2. Jagos Bangar

[F. No. L- 14014/30/2006- G.P. ]

S. B. MANDAL, Under Secy .

नई दिल्ली , 10 सितम्बर , 2007

का.आ. 2599.- केन्द्रीय सरकार को लोक हित में यह आवश्यक प्रतीत होता है कि उत्तर प्रदेश में राज्य दादरी से हरियाणा राज्य में पानीपत तक प्राकृतिक गैस के परिवहन के लिए इण्डियन ऑयल कारपोरेशन लिमिटेड द्वारा " आर. एल.एन.जी. स्पर पाइपलाइन " के कार्यान्वयन हेतु एक शाखा पाइपलाइन बिछाई जानी चाहिए;

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

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

कोई भी व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है , उस तारीख से जिसको भारत के राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियां साधारण जनता को उपलब्ध करा दी जाती है , इक्कीस दिन के भीतर , उसमें उपयोग के अधिकार का अर्जन करने या भूमि के नीचे पाइपलाईन बिछाए जाने के संबंध में , श्री बीरेन्द्र गुप्ता , वरिष्ठ भूमि अर्जन अधिकारी/सक्षम प्राधिकारी , इंडियन ऑयल कारपोरेशन लिमिटेड, आर-2/ 18 , राजनगर , गाजियाबाद ( उत्तर प्रदेश ) को लिखित रूप में आक्षेप भेज सकेगा ।

अनुसूची

तहसील : मोदीनगर

राज्य: उत्तर प्रदेश

जिला : गाजियाबाद

गांव का नाम

खसरा नं.

क्षेत्रफल

वर्गमीटर

हेक्टेयर

एयर

521

1. बसन्तपुर सैंतली

[सं. आर-14014/29/2006-जी.पी. ]

एस. बी. मण्डल , अवर सचिव 6925

भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II- खण्ड 3( ii ) ]

New Delhi , the 10th September, 2007

S.O. 2599. Whereas , it appears to the Central Government, that it is necessary in public interest that for transportation of natural gas from Dadri in the State of Utter Pradesh to Panipat in the State of Haryana , " R- LNG Spur pipline from Dadri to Panipat" , should be laid by Indian Oil Corporation Limited;

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

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

Anyperson interested in the land described in the said Schedule may, within twenty one days from the date on which the copies of the notification issued under sub - section ( 1 ) of Section 3 of the said Act, as published in the Gazette of India are made available to the general public, object in writing to the acquisition of the right of user therein or laying of the pipeline under the land to Shri Birendra Kumar Gupta. Sr. Land Acquistion Officer/Competent Authority , Indian Oil Corporation Limited , R- 2/ 18 Raj Nagar, Ghaziabad, (Uttar Pradesh) .

SCHEDULE

State : Uttar Pradesh

District : Ghaziabad

Tehsil : Modinagar

Area

Khasra No.

Name ofVillage

Are

Hectare

Square Meter

521

1. Basantpur Saintli

[No. L- 14014/29/2006-G.P. ]

S. B. MANDAL , Under Secy .

नई दिल्ली , 10 सितम्बर , 2007

का.आ. 2600. - केन्द्रीय सरकार को लोक हित में यह आवश्यक प्रतीत होता है कि उत्तर प्रदेश राज्य में दादरी से हरियाणा राज्य में पानीपत तक प्राकृतिक गैस के परिवहन के लिए इण्डियन ऑयल कारपोरेशन लिमिटेड द्वारा " आर. एल.एन.जी. स्पर पाइपलाइन " के कार्यान्वयन हेतु एक शाखा पाइपलाइन बिछाई जानी चाहिए;

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

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

कोई भी व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है , उस तारीख से जिसको भारत के राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियां साधारण जनता को उपलब्ध करा दी जाती हैं, इक्कीस दिन के भीतर, उसमें उपयोग के अधिकार का अर्जन करने या भूमि के नीचे पाइपलाईन बिछाए जाने के संबंध में , श्री बीरेन्द्र कुमार गुप्ता, वरिष्ठ भूमि अर्जन अधिकारी /सक्षम प्राधिकारी , इडियन ऑयल कारपोरेशन लिमिटेड , आर-2/18 , राजनगर , गाजियाबाद ( उत्तर प्रदेश ) को लिखित रूप में आक्षेप भेज सकेगा ।

अनुसूची

राज्य : उत्तर प्रदेश

जिला : बागपत

तहसील : खेकड़ा

क्षेत्रफल

खसरा नं.

गांव का नाम

वर्गमीटर

हेक्टेयर

एयर

109

1. खैला

[फा. सं. एल -14014/30/2006 -जी.पी. ]

एस. बी. मण्डल , अवर सचिव 6926

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3 ( ii ) ]

New Delhi , the 10th September, 2007

S.O. 2600.-Whereas , it appears to the Central Government , that it is necessary in public interest that for transportation ofnatural gas from Dadri in the State of Uttasr Pradesh to Panipat in the State of Haryana, " R-LNG Spur pipline from Dadri to Panipat " , should be laid by Indian Oil Corporation Limited;

Now, therefore , in exercise of the powers conferred by sub - section ( 1 ) of Section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 62) , the Central Government hereby declares its intention to acquire the right of user therein.

Any person interested in the land described in the said Schedule may , within twenty one days from the date on which the copies of this notification issued under sub- section ( 1 ) of Section 3 of the said Act, as published in the Gazette of India are made available to the general public object in writing to the acquisition of the right of user therein or laying of the pipeline under the land to Shri Birendra Kumar Gupta . Sr. land Acquistion Officer/CompetentAuthority, Indian Oil Corporation Limited, R- 2/ 18 Raj Nagar , Ghaziabad, (Uttar Pradesh).

SCHEDULE

Tehsil :Khekra

State : Uttar Pradesh

District: Baghpat

Name ofVillage

Khasra No.

Hectare

Area Are

Square Metre 1

1. Khaila

109

[F. No. L- 14014/30/2006- G.P. ] S. B. MANDAL, Under Secy .

नई दिल्ली , 11 सितम्बर , 2007

का.आ. 2601.- केन्द्रीय सरकार को लोक हित में यह आवश्यक प्रतीत होता है कि काकीनाडा-हैदराबाद- उरान- अहमदाबाद ट्रंक गेस पाइपलाइन से महाराष्ट्र राज्य ठाणे और रायगड जिले के विभिन्न उपभोक्ताओं तक प्राकृतिक गैस के परिवहन के लिए मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड द्वारा खोणी से चाल तक पाइपलाइन बिछाई जानी चाहिए ।

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

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

कोई भी व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है , उस तारीख से जिसको उक्त अधिनियम के अधीन जारी की गई अधिसूचना की प्रतियां साधारण जनता को उपलब्ध करा दी जाती हैं, इक्कीस दिन के भीतर, भूमि के नीचे पाइपलाईन बिछाई जाने के लिए उपयोग के अधिकार के अर्जन के संबंध में श्री एस.डी. भिसे, सक्षम प्राधिकारी , मैसर्स रिलायंस गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्चर लिमिटेड , दूसरी मंजिल , हरि नारायण कॉम्प्लेक्स , जुना डालडा डिपो , शिवाजी चौक , फर्नीचर मार्केट , उल्हासनगर-421003 , जिला ठाणे , महाराष्ट्र राज्य को लिखित रूप में आक्षेप भेज सकेग ।

अनुसूची

तहसील : कल्यान

जिला : ठाणे

राज्य : महाराष्ट्र

गांव का नाम

सर्वे नं./गट नं.

आर ओ यू अर्जित करने के लिए क्षेत्रफल

सी-एयर

हेक्टेयर

एयर

5 ( 1 ) खोणी

97 भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[ भाग II- खण्ड 3 ( ii ) ]

2 1

139 ( 1 ) खोणी ( जारी )

गट नं. 30/4 आणि 140 के बीच में

140

गट नं. 140 के नजदीक नाला

जिला : ठाणे तहसील : अंबरनाथ

गट नं. 57 के नजदीक नाला

(1) चिरड

गट नं. 49 के नजदीक नाला

गट नं. 48 के नजदीक नाला

गट नं. 45 के नजदीक नाला

गट नं. 44 के नजदीक नाला

गट नं. 42 और 43 के बीच में नाला

6 (2) ना-हेन

162

58 (3) करवले

50/पी (4) उसाटणे

6927

69 00

राज्य : महाराष्ट्र

14 00

00 /

63 00

24.

00 6928

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

1 2

3 (4) उसाटणे ( जारी )

192

गट नं. 192 और 111 के बीच में नाला

111

197

गट नं. 197 और 114 के बीच में नाला

114

117

116

115

143

141

136

139

138

147

160 तहसील : पनवेल

जिला : रायगढ़ (1) नागझरी

(2) चाल

113

114

.115

5/7

11/3

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

6 00

83 00

55 00

45 00

22 00

64 00

55 00

47 00

18 00

71 00

12 00

63 00

70 00

11 00

44 00

88 00

93 88 00

10 00

85 00

09 00

59 00

07 राज्य : महाराष्ट्र

42 00

56 00

07 00

48 00

24 00

63 00

87 00

12 00

85 00

89 00

70 00

44 00

89 00

51 00

84 00

31 00

72 00

10 00

24 6929

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

[ भाग II- खण्ड 3 ( ii ) ]

(2) चाल ( जारी )

4/1

25/3

25/4

25/19

25/11

[फा. सं. एल-14014/13/2007- जी.पी. ] एस. बी. मण्डल , अवर सचिव

NewDelhi , the 11th September , 2007

S.O. 2601. Whereas it appears to Central Government that it is necessary in public interest that for transporta- tion of natural gas from Kakinada - Hyderabad- Uran - Ahmedabad trunk gas pipeline to various consumers of District Thane and Raigad in the State of Maharashtra, a pipeline should be laid from Khoni to Chal by M/s . Reliance Gas Transportation Infrastructure Limited;

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

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

Any person interested in the land described in the said Schedule may , within twenty - one days from the date on which the copies of the notification as published in the Gazette of India , are made available to the general public , object in writing to the acquisition of right of the user therein for laying the pipeline under the land to Shri S. D. Bhise, Competent Authority, Reliance Gas Transportation Infrastructure Limited , 2nd Floor , Hari Narayan Complex , Old Dalda Depot, Shivaji Chowk, Furniture Market , Ulhasnagar - 421 003 , Dist . Thane , Maharashtra State.

SCHEDULE State : Maharashtra

District : Thane

Tehsil : Kalyan

Survey/Sub-division No. Village

(1 ) Khoni

139

Area requird for ROU Acquisition

C-Are

Are

Hed.

Road in bet . Svy . No. 30/4 & 140

140

Nala Near Svy. No. 140

District: Thane ' Tehsil : Ambernath

State : Maharashtra

Nala Near Svy . No. 57

(1) Chirad

3677 Gl /07-4

00 6930

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

49 (1) Chirad ( Contd. )

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

5 00

22 00

Nala Near Svy. No. 49

Nala Near Svy . No. 48

Nala Near Svy , No. 45

Nala Near Svy . No.44.

99 00

84 00

59 00

14 00

05 00

36 00

00 00

84 00

Nala in bet . Svy . No. 43 & 42

29 Narhen

(2)

162 Karvale

(3)

59 Usatane

(4)

50/P

192

79 00

97 00

63 00

53 00

20 00

04 00

86 00

18 00

64 00

73 00

44 00

72 00

15 00

00 00

71 00

44 00

28 00

22 00

28 00

09 00

67 00

70 00

07 00

83 00

55 00

45 00

64 00

55 00.

47 00

Nala in bet Svy. No. 192 & 111

111

197

18 00

71 00

12 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

(4) Usatane( Contd.)

Nala in bet Svy. No. 197 & 114

114

117

116

115

143

141

136

139

138

147

160

Tehsil : Panvel

District: Raigad

(1) Nagzari

113

(2) Chal

114

115

5/17

11/3

4/1

25/3

25/4

25/19

25/11

6931

5 00

63 00

44 00

88 00

36 00

59 00

07 State :Maharashtra

42 00

48 00

24 00

87 00

12 00

85 00

89 00

70 00

44 00

89 00

08,

84 00

31 00

72 00

10 00

24 00

34 00

95 00

26 00

37 00

87 00

88 00

10 00

[F. No. L- 14014/13/2007 -GP] S. B. MANDAL, Under Secy ..

[PART II-SEC. 3 (ii)] 6932

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929 .

श्रम एवं रोजगार मंत्रालय नई दिल्ली, 20 अगस्त , 2007

1980 notified vide Govt . of India Gazette Notification No. II (2) /80 -Reg . Dated 8th April , 1980 to the prejudice of some employees in the matter of their promotion and career progression is justified ? If not, to what relief are these employees entitled? " का.आ. 2602.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार मैसर्स ओ. एन. जी. सी. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय कोलकाता के पंचाट (संदर्भ संख्या 20/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल -30011/61/1999- आईआर ( एम ) ] एन. एस. बोरा , डेस्क अधिकारी

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 20th August, 2007

S.O. 2602. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 20/ 2000) of the Central Government Industrial Tribunal - cum- Labour Court , Kolkata as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s ONGC and their workmen , which was received by the Central Government on 17-8-2007.

[No. L-30011/61/ 1999 - IR (M ) ] N. S. BORA, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT, KOLKATA REFERENCE NO . 20 OF 2000

Parties : Employers in relation to the management of the Director O. N. G. C. AND Their Workmen PRESENT

Mr. Justice C. P. Mishra, Presiding Officer

APPEARANCE :-

: Mr. B. Ram, Manager(IR)

Onbehalf of the Management

Onbehalf of the workmen

: Mr. R. N. Bhattacharjee, President with Ms. A Dey Sarkas , Treasurer of the union

Industry: Petroleum.

State : West Bengal

Dated, the 7th August, 2007

AWARD

2. This dispute has been espoused by the O.N.G.C. Employees Association , hereinafter to be referred as the union . The case of the union as it appears from its written statement in brief is that the management of Oil & Natural Gas Corporation , hereinafter to be referred as the managment, issued an in -house Office Order No. 25( 1)/97- RP- I dated 14-03-1997 in respect of modification to the Recruitment & Promotion Regulations , 1980, but the said Office Order dated 14-03-1997 has not been circulated amongst the employees of O.N.G.C. By issuing this Office Orderdated 14-03-1997 the management has violated the Gazette Notification of Govt . of India in the matter of ONGC( Recruitment & Promotion ) Regulations , 1980 , hereinafter to be referred as the R & P Regulation . By such Office Order management also violated the Insustrial Disputes Act, 1947 in the name of change of service condition and career progression . The employees of O accordingly entitled to get all benefits for their career progression/development as per R & P Regulation . It is alleged that the management started forceful implementation of the said Office Order dated 14-03-1997 by compelling the employees to put their signatures on the option form without disclosing the detail contents of the said office order . The employees raised objection againt such unfair and illegal action of the managment , but the management did not respond to it. In such view of the matter , the union was compelled to take up the matter with the Reginoal Labour Commissioner (Central ) , Kolkata . The conciliation officer thereafier initiated conciliation proceeding , but due to negligence and latches on the part ofthe management it ended in failure and ultimately the present dispute has been referredto this Tribunal for adjudication . According to the Union the management cannot change the R. & P. Regulation in the narne of modification . The employees recruited between 1974 and 1980 cannot be controlled by the said office order dated 14-03-1997 and since it is clear violation of R. & P. Regulation , it cannot be made effective on those employees . It is alleged that by this Office Order dated 14- 03-1997 the employees who were recruited between 1947 and 1980 have been discriminated inrespect of their promotion and career progression. It is also alleged that this OfficerOrder is in violation of Section 9A of the Industrial Disputes Act, 1947. This Office Order is also stated to be non statutory and therefore not applicable . The union accordingly pray that this Office Order dated 14-03-1997 be cancelled as non-effective and R. & P. Regulation be given effect.

By Order No. L- 30011 /61/99 - IR (M) dated 24-02-2000 the Central Government in exercise of its powers under Section 10( 1 )( d) and (2A) of the Industrial Disputes Act , 1947 referred the following dispute to this Tribunal for adjudication:

3. The management in its written statement denied the claims and contentions of the union . Its is stated the present reference is not maintainable on the following grounds:

(a) The issue as referred is beyond the items as enumerated in the Second or Third Schedule of. the Industrial Disputes Act , 1947;

"Whether the action of the management of Oil & Natural Gas Corporation Ltd. in bringing about modifications vide office order No. 25(1)/97- RP - I dated 14-3-97 to the Recruitment and Promotion Regulation 6933

भारत का राजपत्र सितम्बर 15 , 2007/ भाद्र 24, 1929

3 (ii) ]

[भाग II-खण्ड

(b) The appropriate Government had no material before it to refer the dispute under reference ;

(c) The union under reference has got no locüs standi and/or representative character to espouse the cause of the employees ;

97-R.P.I dated 06-11-1997 of the Company , Ext . M- 3 are the minutes of the meetings held from 21-04-1996 to 23-04- 1996. Ext . M - 4 is the letter of the Chief Manager (P & A) dated 27-08-1999 addressed to the Regional Labour Commissioner , Kolkata. Ext. M-5 is the Oil & Natural Gas Commission (Recruitment & Promotion) Regulations, 1980 and connectéd instructions .

(d) The Office Order dated 14-03-1997 was challenged before the Hon'ble Gujarat High Court vide Special Civil Application No. 8545/99 whereupon the Hon'ble High Court by order dated 17-02-2000 has dismissed the said petition in favour of the Company ; and

(e) The reference suffers from the infirmity of non- application of mind being based upon incorrect assumption .

6. WW -1 , Basudeb Bhatta has been examined on behalf of the workmen as sole witness in this case . He joined the ONGC as a Motor Vehicle Driver in the year 1989 and he was so appointed under the R & P Regulations , which was notified in the India Gazette . He has stated that the management has issued a circular on 14-03-1998 but it was not circulated amongst the employees . He however , saw the said circular subsequently in February , 1999. Не was given one option form by the management after that circular , but he did not sign the opion form . It is stated by him that he was given to understand that the workmen who could not sign the option form shall have to face difficulty in future . According to him there was some change in the service condition after the circular dated 14-03-1997 and this circular violated the R & P Regulations . Futher , according to him after this new policy there were discrimination between the employees regarding pay scale and promotion and his promotional prospects have been reduced . The witness has not been cross - examined by the management . Management also has not examined any witness in this case .

7. It appears from the record that after I took charge of this Tribunal this case was fixed on 14-9-2006 for argument by the parties afresh on which date none appeared for eirher of the parties . Even thereafter several dates were fixed for the same giving the parties opportunity to make their argument , but no one appeared on behalf of either of the parties. Accordingly , vide order dated 6-3-2007 a fresh notice was directed to be issued to the parties fixing 8-5-2007 for argument . But even on this date the parties preferred not to appear inspite of service of notice . In such circumstance, this Tribunal has no other alternative but to proceed to pass an Award on the basis of the materials available on record.

Onmerit , the case of the management is that it was mutually agreed in the meeting held with the recognized unions to form a small working group to dicusss the issue in depth and work out draft for the modification of the R & P Regulations and based on this decision a working group was constituted consisting of Senior Executives of the management and all General Secretaries of the recognized unions of O. N.G.C. Thereafter , a series of meetings were held amongst the members for having an understanding for modification of R & P Regulations and ultimately a memorandum of understanding was , signed with the recognized unions on 08-10-1995 . In accordance with the said memorandum of understanding signed with the recognized unions the said office order was issued pertaining to modification of the R & P Regulations on 14-03-1997. Accordingto the management such modification was needed in order to cope with the fast developing technology so that more qualified and efficient employees can be recruited in higher posts for improving efficiency . Management has denied that it had violated the Industrial Disputes Act, 1947.It is stanted that the provisions of promotion and carrier progression available carlier to issue of the said Office Order have not been violated by way of modification. It is denied that the said Office Order has not been circulated within the employees of ONGC and that the management violated Gazette Notification of the Govt . of India as alleged by the union . Management has also denied that it started forceful implementation of the Office Orderdated 14-03-1997 and that it compelled the employees to put their signatures on the option form without disclosing the details contents of the same . Management has also denied other allegations of the union.

4. A rejoinder is also filed by the union reiterating its contentions and denying the contentions of the management .

8. On the perusal of the aforesaid facts relating to this matter , it is evident that the action of the management has been challenged regarding the modification made by it in the R & P Regulations , 1980 vide Office Order dated 14th March , 1997 as it violated the provisions of Section 9A of the Industrial Disputes Act , 1947 which is obligatory onthe part of the managemant to issue notice before making any such change in the service conditions of the workmen. It isalso stated that the workmen are deprived to get their due promotions to the post of executive officer and they are also deprived of getting their personal upgradation as compared with other employees having the similar qualifications in this regard . The management , however , has denied it and also relied upon the decision geven by the Hon'ble Gujarat High Court dated 17-2-2000 in Special 5. 12 documents have been exhibited on behalf of the workmen in this case and those are marked Exts . W- 1 to W- 12 . All these documents are relating to the conciliation proceeding concerning this case on failure of which the present reference has been made by the Central Govt . On the other hand, the management has exhibited five. documents Ex.M - 1 is the memorandum of understanding dated 08-10-1995 Ext . M - 2 is the Office Order No. 25 (1)/ 6934

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929 [PART II-SEC. 3 (ii) ] CivilApplication No. 8545 of 1999 as the said Office Order dated 14-3-1997 was challenged there , but it has been dismissed in favour of the management . It is also submitted that the said Office Order Dated 14-3-1997 was duly circulated to all the concerned offices and its employees and there is no question of any obligation to obtain their signatures on the option form which was duly filled up by them. The said Office Order was also issued after the matter was mutually agreed with the recognized unions and after a memirandum of understanding was signed with them on 8-10-1995 . Моreover , the managemant had taken this step in view of the fast developing technology and the Company needs more qualified and efficient employees at higher level in order to bring efficient persons on higher posts and with this object the modification has been made in consultation with all recognized unions operating in the Company. The Company has got power to amend the rules and no notice is required to be given under section 9A of the Industrial Disputes Act , 1947 as there is no change in the service condition of the employees and the memorandum of understanding agreed between the management and the unions representing the majority of the workers is very much binding on both the sides for the same in this regard .

the Hon'ble Supreme Court in the matter of State of Jammu & Kashmir v. Shiv Ram Sharma & Ors . ( AIR 1999 SC 2012) that prescribing the essential qualification does not amount to change in the condition of service . Any such modification for prescribing any such test does not affect the service condition so that the Office Order dated 14-3-1997 could be challenged . It is also evident that the said Office Order also has taken care of the career of promotion of the employees who are unable to acquire qualification for being eligible to the executive cadre by considering their lenght of service etc. in this regard . The modifiacations since have been arrived after the matter was mutually settled between the management and the recognized unions , it is very much binding upon both the sides . Once the rules are modified they naturally shall apply to all the employees on the effective date and a commonclass of employees cannot be divided into sub- classes to be governed by two different sets of rules . It is also settled law that such rules can be said to be retrospectively applicable to both the existing employees as well as to the employees who enter into the service subsequently . The workmen also could not show by any cogent evidence as to how and in what manner such modification in the R & P Regulations , 1980 cause to the prejudice to the employees in the matter of their career progression.

10. In view of the above , the action of the management of Oil & Natural Gas Corporation Ltd. in bringing about modifications vide Office Order No. 25 ( 1 )/ 97-RP- 1 dated 14-3-1997 to the Recruitment and Promotion Regulations , 1980 notified vide Govt . of India Gazette Notification No. II (2 )/80 - Reg . Dated 8th April , 1980 is held to be justified . The workmen accordingly are not entitled to any relief.

C. P. MISHRA, Presiding Officer

Dated , Kolkata , The 7th August , 2007 .

नई दिल्ली , 20 अगस्त, 2007

का.आ. 2603.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार मैं अ. करीम , स्टोन माईंस , कूंकडा, कोटा के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , कोटा ( राजस्थान) के पंचाट ( संदर्भ संख्या आई टी. के ( सी ) 21/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-29012/45/2000- आईआर (एम ) ] एन. एस बोरा , डेस्क अधिकारी

New Delhi , the 20th August, 2007

9. On the perusal of the evidence on record produced by the management viz . Ext . M - 1 which is the minutes recorded showing the joint meeting of the representatives ofthe recognized unions and the managemant from 6th to 8thOctober , 1995 and Ext . M - 2 the Office Order issued in pursuance of that really go to show that after the memorandum of understanding was signed modification was mutually agreed by both the management and the representatives of the workmen . The said office Order , Ext. M -2 also goes to show that it provides full and proper scheme both for the existing employees as well as to the employees who were to be recruited subsequently after the enforcement of this policy. Moreover , the modified rules only provides that the employees concerned to undertake certain tests in order to get promotion and this in no way affects the service condition, but it is just a mode of recruitment to the higher post for which certain basic norms and qualification is to be put in so that the work may be done by the concerned workman with efficiency after he is so promoted to the higher post in this regard. This could not have any adverse effect so far as the chance to the workmen for getting promotion . Moreover, mere chance of promotion is not a condition of service. The workmen also could not show by any cogent evidence as to how and in what manner such modification in the R & P Regulations , 1980 caused prejudice to the employees in the matter of their career progression . Their right to be considered for promotion has not been taken away in any way by such modification , but all that has been done by the modification is that an additional qualification has been prescribed as a pre - requisite for being considered for such promotion . It has been held by

S.O. 2603. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. ITK(C) 21/2000) of the Industrial Tribunal -cum- Labour Court , Kota [ भाग II-खण्ड 3 (ii) ]

6935

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

(Rajasthan) as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/ s . Abdul Karim , Stone Mines , Kukra and their workmen , received by the Central Government on 17-8-2007 .

जाने से पूर्व अधिनियमांतर्गत कोई नोटिस अथवा नोटिस वेतन व मुआवजा राशि अदा नहीं की गयी तथा उससे कनिष्ठ श्रमिकों को अप्रार्थी ने नियोजन में बनाये रखा । इस तरह अप्रार्थी ने प्रार्थी श्रमिक को अनुचित एवं अवैध तरीके से सेवा से पृथक किया है जो सेवा पृथकरण अनुचित घोषित करते हुए पिछले सम्पूर्ण वेतन व समस्त सेवा लाभों सहित सवो में पुनर्स्थापित का अनुतोष प्रदान किया जावे । [No. L- 29012/45 /2000 - IR( M)] N. S. BORA, Desk Officer

अनुबंध

न्यायाधीश, औद्योगिक न्यायाधिकरण , कोटा/केन्द्रीय/कोटा/राज.

पीठासीन अधिकारी श्री गोवर्धन बाढ़दार , आर.एच.जे.एस. निर्देश प्रकरण क्रमांकः औ.न्या. केन्द्रीय /-21 /2000

4. अप्रार्थी-नियोजक की और से जबाब प्रस्तुत करते हुए प्रार्थी के क्लैम को अस्वीकार किया गया है और कहा गया है कि प्रार्थी स्वयं ही नौकरी पर नहीं आया तथा हिसाब व कम राशि देने वाली बात झुठी अंकित की गयी है तथा स्वयं उसके डयूटी पर नहीं आने के कारण कोई नोटिस अथवा नोटिस वेतन व मुआवजा आदि दिये जाने का प्रश्न उत्पन्न नही होता । प्रार्थी , अधिनियम के प्रावधान लागू नहीं होने से कीई अनुतोष का अधिकारी नहीं है , क्लेम सव्यय निरस्त किया जाये ।

दिनांक स्थापितः 11/9/2000

प्रसंगः भारत सरकार, श्रम मंत्रालय नई दिल्ली के आदेश क्रमांक एल . 29012/45/2000/ आईआर ( एम ) दि. 11-8-2000

निर्देश अन्तर्गत धारा 10-( 1 ) (घ) औद्यौगिक विवाद अधिनियम , 1947

मध्य

कन्हैयालाल पुत्र श्री सीताराम । द्वारा अध्यक्ष , पत्थर खान मजदूर यूनियन, राज. सीटू ट्रेड यूनियन छावनी , कोटा ।

-प्रार्थी श्रमिक

एवं

5. पत्रावली के अवलोकन से प्रकट होता है कि यह प्रकरण 14-2-02 से साक्ष्य प्रार्थी व पेश होने दस्तावेजात अब तक नियत होता रहा है और अन्तिम बार 5-6-07 को प्रार्थी की घोर आपत्ति के कारण इस हिदायत के साथ उसके प्रार्थना- पत्र को स्वीकार करते हुए कि यदि आगामी पेशी पर साक्ष्य प्रस्तुत नहीं की गयी तो उसके साक्ष्य का अधिकार स्वतः ही समाप्त मान लिया जावेगा , आज की पेशी नियत की गयी । इन विशेष परिस्थितियों में अवसर दिये जाने उपरान्त भी प्रार्थी श्रमिक न तो स्वयं आज न्यायालय में उपस्थित हुआ है एवं न ही उसकी ओर से कोई प्रलेखीय अथवा मौखिक साक्ष्य प्रस्तुत की गयी है , अतः पूर्व आदेशिकानुसार उसके साक्ष्य का अधिकार स्वतः ही समाप्त समझा जाता है । अप्रार्थीनियोजक की और से भी, प्रार्थी श्रमिक की ओर से अभिलेख पर किसी प्रकार की साक्ष्य उपलब्ध नहीं करवाने के कारण , कोई साक्ष्य प्रस्तुत नहीं किया जान , प्रकट किया गया ।

मै. अब्दुल करीम , स्टोन माईन्स कूकड़ा, द्वारा चांदखां, पीरखा कंपनी , एटी एण्ड पीओ मोड़कस्टेशन तहसील रामगंजमण्डी जिला कोटा

-अप्रार्थी नियोजक

उपस्थित

प्रार्थी- श्रमिक की ओर से प्रतिनिधि:- श्रीडी. आर. द्विवेदी

अप्रार्थी नियोजक की ओर से प्रतिनिधिः श्री जमील अहमद

अधिनिर्णय दिनांक: 4-7-07

अधिनिर्णय

बहस पक्षकारों की सुनी गयी, पत्रावली का ध्यानपूर्व अवलोकन किया गया । स्पष्टतः प्रार्थी श्रमिक अपने क्लेम समर्थन में किसी भी प्रकार की साक्ष्य प्रस्तुत कर क्लेम में वर्णित तथ्यों को साबित करने में पुर्णतया असफल रहा है । अतः अप्रार्थी नियोजक द्वारा प्रार्थी श्रमिक कन्हैयालाल का दिनांक 18-8-99 से सेवा से पृथक किया जाना किसी भी प्रकार से अनुचित एवं अवैध नहीं है और वह अधिनियमान्तर्गत कोई संरक्षण प्राप्त नहीं होने , किसी प्रकार का कोई अनुतोष प्राप्त करने का अधिकारी नहीं है । सम्प्रेषित निर्देश/विवाद को इसी प्रकार अधिनिर्णित कर उत्तरित किया जाता है ।

i गोवर्धन बाढ़दार , न्यायाधीश

नई दिल्ली , 21 अगस्त , 2007 भारत सरकार , श्रम मंत्रालय , नई दिल्ली के आदेश दिनांक 11/8/2000 के जरिये निम्न निर्देश/विवाद , औद्यौगिक विवाद अधिनियम, 1947 ( जिसे तदुपरान्त " अधिनियम " से सम्बोधित किया जायेगा ) की धारा 10 ( 1 ) ( घ ) के अन्तर्गत इस न्यायाधिकरण को अधिनिर्णयार्थ समेषित किया गया है :-

Whether the termination of services of Sh . Kanhaiyalal S /o Sh . Sitaramfrom 18-8-89 by the management of M/s . Abdul Karim, Stone Mines , Kukra is legal and justified? If not, to what relief the disputant is entitled and from which date ?"

का.आ. 2604. औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सेंट्रल बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , अर्नाकुलम के पंचाट ( संदर्भ संख्या 81/2006 ) . को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

2. निर्देश-विवाद , न्यायाधिकरण में प्राप्त होने पर पंजीबद्ध उपरान्त पक्षकारों को सूचना विधिवत रूप में जारी की गयी ।

[सं. एल -12011/199/1999- आईआर ( बी-11 ) ]

राजिन्द्र कुमार , डेस्क अधिकारी

New Delhi , the 21st August , 2007 3. प्रार्थी श्रमिक कन्हैयालाल के सम्बन्ध में क्लेम स्टेटमैन्ट प्रस्तुत सक्षिप्तः यह अभिकथित किया गया है कि उसे अप्रार्थी- नियोजक खान में 1993 से कारीगर ( पत्त्थर काटने ) के कार्य पर नियोजित किया था जहां कार्य करते हुए 18-8-99 को दुर्घटनाग्रस्त हो गया। जब वह 1-10-99 को ड्यूटी पर पहुंचा तो उसे ड्यूटी पर नहीं लिया और 12-10-99 से उसकी सेवाएं समाप्त करने का विवाद उसके द्वारा उठाया गया । यह भी अभिकथित किया गया है कि उसे सेवा से हटाये

S.O. 2604. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 81/2006) of the Central Government Industrial Tribunal- 6936

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 / BHADRA 24, 1929

cum-Labour Court , Ernakulam as shown in the Annexure in the Industrial Dispute between the management of Contral Bank of India and their workmen , received by the Central Government on 20-8-2007.

[No. L- 12011/199/1999 - IR (B - II ) ]

RAJINDER KUMAR, Desk Officer

ANNEXURE

IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT, ERNAKULAM Present : Shri P.LL. Norbert , B.A. , L.L.B. , Prediding Officer

(Friday the 10th day of August , 2007/19th Sravana , 1929)

I.D. 81/2006

(I.D./2000 of Labour Court , Ernakulam)

The President

Union

Central Bank of India Staff Union 41/1757 , Paramara Shopping Centre Kochi - 682018 .

Adv. Shri Ahok S. Shenoy

The Regional Manager

Management

Central Bank of India Regional Office, Geo Towers Pallimukku Kochi-682016

Adv . Shri V.V. Sidharthan

AWARD

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

"Whether the action of the management of Central Bank of India in not reckoning the entire special allowance of Shri T. K. Thomas for fixing his salary consequent on promotion is justified ? If not , what relief the workman is entitled to ? "

2. The facts of the case in brief are as follows : - The fixation of pay and allowances of Shri T. K. Thoma is challenged through union . Shri T.K. Thomas was Driver-cum -Peon in Central Bank of India , Kalanjoor branch. According to the union when he was promoted as Clerk with effect from 1-12-1995 for fixing his salary in the clerical cadre the manegement did not take into consideration the entire special allowance that he was drawing while he was driver . The management on the basis of Promotion Policy Agreement as amended in 1996 , discriminated Drivers , Electricians and Air - Condition Plant Helpers in the matter of fitment while promiting to clerical cadre. Similar sub - staff who were drawing special allowance were granted the same amount of special allowance while fixing salary in the promoted post of clerk . The provision in Clause 24.1 of Chapter XXIV of Promotion Policy Agreement is illegal , discriminatory , arbitrary and void . It is against Article 14 & 16 of the Constitution of India . There is no justification in counting only a part of special allowance for the purpose of fitment. The method adopted by the management has caused heavy finacial loss to Shri T.K. Thomas . The workman the entitled to get the entire special allowance counted for fixing his salary in the promotion post.

3. According to the management, there is no illegality orirregularity in fixing the salary of the workman. It is done in accordance with the guidelines in the Promotion Policy Argeement entered into between the management and majority union of workers . The pay of sub - staff while on promotion is protected by personal pay . The Promotion Policy Agreement was entered into after elaborate discussion with All India Centrla Bank Employees ' Federation . The workman is represented by a minority union . They cannot challenge an agreement arrived by mutual consent between management and majority union . There is no violation of Article 14 & 16 of the Constitution ofIndia. There is no discrimination or arbitrariness in fixing the salary of workman . The workman is not entitled for any relief.

4. In the light of the above contentions the only point that arises for consideration is :

"Whether the entire special allowance that the workman was drawing as driver is to be counted for fixing salary in the clerical cadre on promotion ?" The evidence consists of the oral testimony ofMW1 and documentary evidence of Exts . M1 to M4 on the side ofmanagement and Ext . M1 on the side of workman . 5. The Point :

It is an admitted fact that Shri T.K. Thomas was a drivertill 1-12-1995 . On that day he was promoted as clerk. The union challenges the mode of fixation of salary in the clerical post . As per the 6th Bipartite Settlement dated 14-2-1995 there are 13 categories of subordinate staff in banks who draw special allowance . The amount for such special allowance against each category of subordinate staff is mentioned in Schedule II of Part - II of 6thBipartite Settlement .

Special Allowances

For Subordinate Staff

Amount of Special Allowance (Rs .)

94 1. Cyclostyle Machine Operator

115 2. Liftman

69 3. Relieving Liftman

115 4. Cash Peon

115 5. Watchman/Watchman- cum-Peon

194 6. Armed Guard

194 7. Bill Collector .

228 8. Daftary

263 9. Head Peon

529 10. Air Conditioning Plant Helper

529 11. Electrician

598 12. Driver .

447 13. Head Messenger in Indian Overseas Bank [भाग II-खण्ड 3 (ii) ]

Driver is the 12th category who is entitled for special allownace of Rs . 598 per month . Accordingto the union the entire special allowance of Rs . 598 is to be addedto the Basic Pay of Driver for the purpose of fixing salary when he is promotedto clerical cadre .

6. Ext. W1 is Promotion Policy Agreement of 1975 entered into between the management bank and All India Central Bank Employees ' Federation (major union) . Ext . W1 contains amendment and modification of the agreement up to 31-12-1992. As per the said agreement , Chapter XXIV relates to fixation of emoluments in clerical scale of pay on promotion from subordinate cadre to clerical cadre . The relevant clauses applicable to this case are 24.1 & 3 ( page 94 ofExt. W1) . The relevant portion reads:

"24.1 For the purpose of fixation of salary on promotion , emlouments in subordinate cadre comprising of Basic Pay, Special Allowance , if any , Dearness Allowance thereon , will be taken as the basis .

Provided that in case of Drivers , Electricians & Air- Condition Plant Helpers, Special Allowance as payable for Head peon will be included for fixation of salary.

24.3 In case of Drivers , Electricians & Air- condition Plant Helpers , since special allowance payable to Head Peon will be considered for fixation of pay as stated in provisionto clause 24.1 above , the difference between special allowance drawn by them in subordinate cadre and special allowance of Head Peon will be protected and paid as 'personal pay' . It will be withdrawn in 6 equal instalments or Rs . 20 per year whichever is higher at the time of sanctioning annual increments in the clerical cadre . "

Clause 24.3 thus says that special allowance for the purpose of fitment will be the special allowance payable to Head Peon and the difference in special allowance of Drivers , Electricians , Air - Condition Plant Helpers will be protected by way of ' personal pay' which is recoverable in six equal instalments .

7. As per 6th Bipartite Settlement , special allowance ofHead Peon is Rs . 263 while that of Driver is Rs . 598. As perExt . W1 only Rs . 263 can be added to Basic Pay of Driverwhile fixing his salary on promotion to clerical post and the remaining amount of special allowance is to be paid as 'personal -pay ' . This was again amended in 1996. Ext. M1 is the Memorandum of Settlement as amended in 1996 (relevant portion) . Fixation of emoluments in clerical cadre on promotion of subordinate staff is contained in Clauses 24.1.1 , 1.2 & 1.3 . The relevant clause is the last one . As per Ext . M1 , Clause 24.1.3 the entitre subordinate staff is categorised into 3 groups for the purpose of fitment on promotion . They fall under Formulas ' A, ' ' B ' & ' C ' Formula ' A ' relates to subordinate staff who are not in receipt of special allowance . Formula ' B ' relates to subordinate staff who receive special allwance at different rates up to a maximum of Rs . 194 per mensem . All such 3677 Gl/07-5

6937

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

persons are entitle to get Rs . 194 counted for fitment . Formula ' C' relates to those who receive special allowance above Rs . 194 but are entitled to get only Rs . 228 counted forfitment . This according to the union , is discriminatory so far as categories 9-13 (6th Bipartite Settlement) are concerned. Categories 9-13 draw more than Rs . 228 per month as special allowance . But as per Ext . M1 their special allowance is limited to Rs . 228 for the pupose of fitment on promotion. According to the learned counsel for the union the6th Bipartite Settlement is as statutory settlement arrived after conciliation and binds all workers irrespective of whether their union had participated in the conciliation or not . Whereas Ext. M1 agreement is a private settlement betweenmanagement and majority union and the claimant union had not participated in the settlement. It was not arrived at in the presence of a conciliation officer . Therefore, according to the learned counsel , it is not a settlement having statutory force falling within S- 18 of Industrial Disputes Act . Hence , according to the learned counsel , the management cannot deviate from 6th Bipartite Settlement except through another similar Bipartite Settlement .

8. It is relevant to note that the union does not appear to challenge Ext . W1 Promotion Policy Agreement of1975 and amended up to 1992. However they challenge Ext.M1 Settlement of 1996. Both stand on the same footing as they are private settlements between management and majority union . The claimant minority union is not a party to both Settlements . Clause 24.1 of Ext . W1 is the amended provision, regarding fixation of emoluments in clerical cadre on promotion . The special allowance of Head Peon is Rs . 263. Whereas Drivers , Electricians and Air- Conditioning Plant Helpers draw special allowance at a higher rate . However as per Clause 24.1 of Ext . W1 (page 94) for the purpose of fitment of Drivers , Electricians and Air-Conditioning Plant Helpers on promotion only Rs . 263 (thatof Head Peon) is to be taken into consideration . The balance amount out of special allowance is to be protected by way of ' personal pay' . Clause 24. lof Ext . WI is amended by Ext . M1 and special allowance is limited to Rs . 228 for the purpose of fitment . This , according to the learned counsel for the union , is discriminatory . Persons like Daftary and Head Peon are entitled for Rs . 228 and 263 respectively as special allowance as per 6th Bipartite Settlement . The Drivers , Electricians and Air- Conditioning PlantHelpers who are getting more special allowance than Head Peon are brought down to the level of Daftary and pegged to Rs . 228 as special allowance . The union cannot below hot and cold at the same time regarding Ext . W1 and Ext. M1 . If the union accepts Ext. W1 Settlement there is no reason why they should challenge Ext. M1 . The union is not a party to either Ext . W1 or M1 .

9. The legal implication of a private settlement can be seen from S- 18 ( 1 ) of 1. D. Act. It reads :-

"A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement ." 6938

[PART II -SEC. 3(ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

As the provision shows an agreement u/ s- 18(1) not arrived before a statutory authority can be binding only the parties to the agreement and not all workers . Whereas statutory settlement u/s - 18 (3) of the Act binds all including even those workers or unions who have not participated in the conciliation proceedings . However it is relevant to note the followingdecisions :

The Hon'ble Supreme Court in Herbertsons Ltd. v . WorkmenofHerbertsons Ltd. (1977) LAB IC 162 (SC) (AIR 1977 SC 322) held that even if a few workers were not members of the majority union it would be just and fair that a settlement arrived at otherwise than in the course of conciliation proceedings should not be disturbed particularly when a recognized and registered union entered into a voluntary settlement . It was further held that when a union claims that a substantial number of workmen were not party to the settlement entered into with the majority union and hence the minority union would not be bound by the settlement it would be for that minority union to establish that fact by adducing relevant facts before the Tribunal.

conciliation proceedings. The present union is admittedly aminority union . The settlement in Ext . M1 arrived at with the majority union , is not shown to be fraudulent or arrived atwith malafides or on inducements . The majority union definitely must have taken care of the interest of the workers as awhole . In a settlement absolute parity in pay and perks is not possible. An element of give and take is inevitable in a Settlement . When wage is revised or benefits are conferred through a settlement some workers may benefit more than others . What is more important is the larger interest of majority of workers . The union has no case that the pay of the worker in the case viz . Shri T.K. Thomas , is not protected inthe promoted cadre . The grievance is only that the entire special allowance is not counted for the purpose of fitment . Butthis restriction is applicable not only to drivers but to certain other categories as well . There is a general classification into two groups , one getting special allowance up to a certain limit and the other getting more special allowance than the former . It is a reasonable classification and no category of sub- staff is singled put to confer more benefit or segregated to victimize . The majority union with open eyes consented to such grouping in the best interest of the workmen . The ultra vires of the settlement as such is not the dispute that is referred . But for the purpose of answering the reference it is necessary to consider the terms ofPromotion Policy Agreement . It is not the province of this court to invoke Article 14 of the Constitution and interpret to saywhether the provisions in the settlement violate Article 14 of the Constitution of India .

InAmalgamated Coffee Estate Ltd. v. Their Workmen (1965) 2 LLJ 110 ( SC) , while an appeal was pending before Hon'able Supreme Court against an award of the Tribunal the management and the workmen had compromised the dispute and came to an agreement . The Hon'ble Supreme Court accepted the settlement as fair one and objection of the dissenting workmen against the settlement was not sustained . thus the Hon'ble Supreme Court preferred a private settlement between the parties to an award of the Tribunal even at the stage of appeal .

'In Sarva Shramik Sang v. VVF Ltd. (2002) 4 LLN 266 (Bom.), out of 2 unions which submitted charter of demands the management entered into a Settlement with one which was the majority union . The minority union did not accept ⚫ the terms of Settlement and raised an industrial dispute which was referred for adjudication . The Hon'ble Court found that the Settlement with the majority union was just and fair and passed an award in terms of the said settlement . The award was challenged by minority union. The High Court held that the award of the Industrial Court did not warrant interference . It is no doubt true that there is a State amendmentto S- 18 ( 1) so far as Maharashtra is concerned adding a proviso to Sub - section (1) making a settlement reached with a recognized union as binding on all workers . But the amended Section and the decision of Bombay High Court indicate the trend for healthy industrial atmosphere .

11. The learned counsel for the union relied on the decision ofHon'ble Supreme Court in Central Inland Water Transport Corporation v . Tarun Kanti Sengupta & Anr. (1986) II LLJ 171. In that case Rule 9(1) of the Central Inland Water Transport Corporation Limited Service Discipline and Apeal Rules was under challenge as violative of Article14 of the Constitution of India. The Hon'ble Supreme Court held that Service Discipline And Appeal Rules is void u/ s -23 of the Indian Contract Act . It is opposed to public policy and is also ultra vires of Article 14 of the Constitution . It is to be noted that the rule is made by Central Inland Water Transport Corporation unilaterally and not after settlement with the union of workers . It is a decision of the manageinent and it is given legal force by framing Rules . The union has no voice in the Rule making. It was that Rule that was framed unilaterally that was challenged before the Hon'ble Supreme Court . The decision in that case cannot be made applicable to the facts of this case as it is a bilateral settlement that is being challenged by the union . Both cases on facts do not stand on the same footing . It is the scope of S - 18 ( 1 ) of 1.D. Act that has to be considered while deciding whether the provisions of Bipartite Settlement bind all the workers in the Company or not .

10. It is relevant to note that the Report of Second National Commission on Labour , recommended to recognize a Settlement arrived at between a recognized union and management as binding on all workers irrespective of whether they are members of the union or not (Report of the 2nd National Commission on Labour , Conclusions and Recommendations, 2002, Chapter 13, page 42 , Para 6.75) . Thus the Commission favours a settlement arrived at the bipartite level with a recognized union as having the same effect as that of the settlement arrived at in course of

12. I have already observed in the light of the decision of the Hon'ble Supreme Court that Exts . W1 & [ भाग II-खण्ड 3 ( ii) ]

M1 settlements were arrived at between management and majority uniontaking care of the larger interest ofworkers as a whole and not purposely excluding any category or victimizing any category of workmen . The union in this case was not able to point out that their members were purposely picked up to deny benefits while arriving at a settlement . The possibility of frustrating a settlement by a minority union due to union rivalry cannot be ruled out in agiven circumstance . In such an event it would be difficult for any management to arrive at a settlement with the majority union which enjoys the support of larger section of workforce . At every stage of settlement reached periodically , there would be objection by the non- participating minority unions . Thus every settlement is likely to be challenged by a dissenting group of workmen. This process will go on whenever there is a settlement . It is not a healthty practice in an industry and will not further the interest of workers as a whole and is bound to lead to disharmony and discontentment in a concern . The decisions referred supra lean in favour of private settlements as binding on all workers , whether they are members of recognized union who participated in the Settlement or not . Viewed in that perspective Ext . M1 is binding on the workman in this case and it is not open for challenge.

محمد

13. In the result , an award is passed finding that the action of the management of Central Bank of India in not reckoning the entire special allowance of Shri T.K. Thomas for fixing his salary consequent on promotion is justifiable . No cost . The award will take effect one month after its publication in the official Gazette .

Dictated to the Personal Assistant , transcribed and typed by her , corrected and passed by me on this the 10th day of August , 2007 .

P.L. NORBERT, Presiding Officer

APPENDIX

Witness for the Union :

Nil.

Witness for the Management :

MWI -Shri V. Ramaswamy Sarma - 13-6-2007 Exhibits for the Union :

W1--Promotion Policy Agreement of 1995 entered into between the management bank and All India Central Bank Employees ' Federation .

Exhibits for the Management :

M1-Circular No. CO: PRS :96-97: 61 dated 13-6-1996 reg . amendment of Memorandum of Settlement .

M2 Copy of pay fixation statement in r/ o Shri T.K. Thomas .

6939

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

नई दिल्ली , 21 अगस्त, 2007

का.आ. 2605.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 जबलपुर के पंचाट ( संदर्भ संख्या 246/92) को प्रकाशित करती है, जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/282/92- आईआर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 21st August , 2007

S.O. 2605.-ln pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 246/92) of the Industrial Tribunal- Cum-Labour Court , Jabalpur as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Punjab National Bank and their workmen , which was received by the Central Government on 17-8-2007.

[No. L- 12012/282/92 -IR (B - II) ] RAJINDER KUMAR , Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL - CUM -LABOUR COURT, JABALPUR

No. CGIT/ LC/R/246/92

PRESIDING OFFICER : SHRIC.M.SINGH Shri Jaswant Singh ,

Union/Workmen C/o Vice President , Punjab National Bank Employees Association , C/ o Punjab National Bank Naya Bazar, Lashker, Gwalior(MP)

versus

The Regional Manager, Punjab National Bank, Indore Region, Sneh Nagar , Indore (MP)

Management

AWARD

Passed on this 27th day of July , 2007 The Goverment of India , Ministry of Labour vide its Notification No. L- 12012/282/92/I.R.B -2 dated 21-12-92 has referred the following dispute for adjudication by this tribunal:-

"Whether the action of the management of Punjab National Bank, Naya Bazar Lashker , Gwalior Branch in terminating the services of Shri Jaswant Singh w.e.f. 1-6-90 is justified ? If not , for what relief the workman is entitled for ? " 6940

[PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

the Industrial Dispute between the management ofBank of India and their workmen , received by the Central Government on 17-8-2007 .

[No. L- 12012/97/ 1997- IR(B- II) ]

RAJINDER KUMAR, Desk Officer

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT

INDUSTRIALTRIBUNAL-CUM-LABOUR COURT, JABALPUR

The case ofworkman Shri Jaswant Singh in brief is as follows . That he was employed against permanent vacancy by the management in the month of May 87. He continued to work with no break in his service till 30-6-90 . Hehad put in continous service of more than 240 days . His services were wrongfully terminated w.e.f. 1-6-90 . He was not given any prior notice , wages in lieu of notice or retrenchment compensation in terms of Section 25 F. of I. D. Act 1947. It is prayed that his termination may be held illegal and he be reinstanted in service with back wages and consequencial benefits.

No. CGIT/LC/R/9/98

PRESIDING OFFICER : SHRIC.M.SINGH 3. Against the above the case of management in briefas follows:-That the workman was never employed in sub ordinate Peon . It has been denied by the management that the workman worked for 240 days continuous service. The workman is not entitled to any relief.

Union/Workmen

Shri Chhagan Nana Kharte , Village: Borli, PO: Mehatgaon , Tehsil : Sendwa , Dist:Barwani (MP) -464671

Versus

The Regional Manager , Bank of India, Regional Office , Khandwa Region, B.T. College Road , Anand Nagar ,

Khandwa

Management

AWARD

Passed on this 31st day of July , 2007 4. While the reference was in progress on 10-7-07 workman Shri Jaswant Singh identified by Shri Anil Kumar Nagaria, Assistant General Secretary , All India Punjab National Bank Employees Association MP came present and Shri Janardhan Pathrabe , Assistant , in the employment in the management , authorized by Chief Manager , Punjab Naitonal Bank, Regional Office , Jabalpur came present . On this date workman Shri Jsawant Singh moved an application intimating to this Tribunal that he wants to withdraw the case. The workman and Shri Janardhan Pathrabe submitted that now no dispute is left between the parties and therefore , the reference be closed for passing no dispute award and in this manner the reference was closed for award.

The Government of India, Ministry of Labour vide its Notification No. L- 12012/97/97/I.R. (B - II ) dated 13-1-98 has referred the following dispute for adjudication by this tribunal :--

5. It is very clear from the above that now no dispute . is left between the parties and therefore it would be just and proper to pass no dispute award without any order as to costs. Consequently no dispute award is passed without any order asto costs .

C. M. SINGH, Presiding Officer

"Whether the action of the management of Bank of India in termination the services of Shri Chhagan Nana Kharte w.e.f. 28-2-96 is legal and justified ? If not , to what reliefthe workman is entitled for?"

नई दिल्ली , 21 अगस्त, 2007

2. Order dated 25-8-05 passed on the order sheet of this reference reveals that on the said date the reference proceeded exparte against workman Shri Chhagan Nana Kharte. The recored reveals that the workman failed to file his statement of claim .

'का.आ. 2606. 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/ श्रम न्यायालय , जबलपुर के पंचाट ( संदर्भ संख्या 9/98 ) . को प्रकाशित करती है , जो केन्द्रीय सरकार को 17-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/97/ 1997 - आईआर ( बी- II ) ]

राजिन्द्र कुमार, डेस्क अधिकारी

New Delhi , the 21st August, 2007

S.O. 2606. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 9/98) of the Central Government Industrial Tribunal- Cum- Labour Court , Jabalpur as shown in the Annexure in

3. The management filed their written statement . Their case is in brief as follows : That the relationship employer and employee does not exist between the parties, therefore, no Industrial dispute exists , between the parties under the I. D.Act 1947. The workman was never employed by the management therefore question of termination of his services does not arise . That the order or reference is illegal , bad in Law and void- ab- initio . The applicant was engaged on daily basis for doing casual nature of job as andwhen required and has been paid accordingly . He did not work for 240 in any of the calander years . He was paid wages directly by the manager whenever he was engaged by him . He was never appointed by the Bank and as such his being on the muster rolls of the Bank does not arise . The Bank Manager in order to ensure smooth customers [भाग II-खण्ड 3( ii) ]

service , is required to engage any person whenever , there is a temporary increase in the casual nature of work and/ or when the regular sub - ordinate staff is on leave . The workman is not entitled to the relief claimed .

4. The management in order to prove their case filed affidavit of their witness Shri Om Prakash Nema , then working as Dy . Zonal Manager in Bank of India .

5. I have heard Shri A. K. Shashi , Advocate for the management . I have very carefully gone thorugh the entire evidence on record .

6. As the case proceeded exparte against the workman no evidence has been adduced on behalf of workman for proving his case . Against the above the case of management is fully proved by the uncontoverted and unchallenged affidavit of their witness Shri Om Parkash Nema . The reference , therefore , deserves to be decided in favour of the management and against the workman . Considering the facts and circumstances of the case. I am of the opinion 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 of the management and against the workman, holding that the action of the management of Bank of India in terminating the services of Sh . Chhagan Nana Kharte w.e.f. 28-2-96 is legal and justified . Consequently the workman 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 Government of India . Ministry of Labour and Employment, NewDelhi as per rules .

C. M. SINGH, Presiding Officer नई दिल्ली , 21 अगस्त, 2007

का.आ. 2607.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार यूनाईटेड बैंक ऑफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में औद्योगिक अधिकरण पटना के पंचाट ( संदर्भ संख्या 3 ( सी ) /2004/ 3 ( सी)/2006 को प्रकाशित करती है, जो केन्द्रीय सरकार को 20-8-2007 को प्राप्त हुआ था ।

[सं. एल-12011/235/2003- आईआर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 21st August, 2007

S.O. 2607. - In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 3 (C)/ 2004/3 (C)/2006 of the Industrial Tribunal , Patna (Bihar ) as shown in the Annexure in the Industrial dispute between the management of United Bank of India and their workmen , received by the Central Government on 20-8-2007.

[No. L- 12011/235/2003 - IR (B - II) ] RAJINDER KUMAR, Desk Officer

6941

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

ANNEXURE

BEFORE THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, SHRAM BHAWAN, BAILEY ROAD, PATNA.

Reference Case No. 3 (C) of 2004

No. 3 (C) of 2006.

Between the chief Regional Manager , United Bank ofIndia, region, Abhaya Bhawan (2nd floor ) , Farzer Road , Patna and their workman represented by the Regional Secretary, United Bank of India Employee's Congress , DC- 18, Akanchha palace , Kankarbagh , Patna.

For the Management : Shri Manoj Kumar Sinha , Advocate & others .

Forthe Workman

: Shri Alok Kumar Sinha , Advocate & Others .

Present

: Vasudeo Ram , Presiding Officer, Industrial Tribunal , Patna.

AWARD

Patna, dated the 14th August , 2007 By adjudication order No. L- 12011/235/2003 - IR (B - II) dated8-3-2004 the Government of India, Ministry of Labour, NewDelhi has referred under clause (d) of Sub -section (1) and Sub -Section (2 - A) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter called ' the Act' for brevity) the following dispute betwen the management of United Bank of India (hereinafter called UBI for brevity) , Region , Abhaya Bhawan (2nd floor ) , Frazer Road , Patna and their workman Shri Sharat Chandra Shrivastava , Cashier - cum- General Clerk, represented by United Bank of India, Employees ' Congress , DC - 18 , Akanchha Palace , Kankarbagh , Patna to this Tribunal for adjudication on the following:

"Whether the two domestic enquiries conducted by the management of United Bank of India, Patna in the case of Shri Sharat Chandra Shrivastava, Cashier- cum-General Clerk were free from bias and were according to the Principles of Natural Justic and the punishment imposed on him is just and legal ? If not what relief the workman is entitled to ?"

2. Both the parties filed their written statements and contested the reference . The case of the workman is that he has been serving in United Bank of India in Clerical cadre since 1984. The higher official of the Bank were annoyed with him due to his Union activities as Unit Secretary . In the year 1995 within a span of 8 to 9 months he was transferred five to six time to and from between St. Columbus college Branch, Hazaribagh and RaniaBranch. While posted at Rania Branch the workman on directions ofregional Office , reported to St. Columbus College Branch, Hazaribagh to fill up the duplicate house building loan form on 25-11-1997 where on the objectionable utterances 6942

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929 [PART II-SEC . 3 ( ii) )

the copies of enquiry reports were provided to him for comments. The workman was also given personal hearing by the DisciplinaryAuthority before passing the order of punishment. The workman preferred appeal in both the cases and the punishments awarded were upheld. According to the management in both the cases the principle of natural justice has been adhered to and there is no merit in the present reference and it is liable to be decided in favour of the management .

5. This Tribunal after perusal of the evidences adduced by the parties passed award on the 7th April , 2005 and held that both the dostic enquiries conducted by the management of United Bank of India , Patna is the case of worker Sri Sharat Chandra Shrivastava were not free from bias , Principles of Natural Justice were not followed while conducting the enquiries , the findings thereon are against the record and cannot be acted upon. This Tribunal further held that both the enquries stand vitiated for reasons aforesaid and the punishment imposed on the worker on the basis of such enquiries is not at all maintainable .

of the Branch Manager the exchange of hot words took place between him (the workman) and the Branch Manager In result a charge- sheet dated 23-12-1997 alleging misconduct was issued to the workman and on 24-12-1997 the workman was put under suspension. The workman submitted reply of the charge- sheet on 3-1-1998 . The domestic enquiry was conducted by Dy . Regional Manager ( Law) . The charges were held proved and punishment was inflicted upon the workman . According to the workman the domestic enquiry was conducted in unfair manner without observing the principles of natural justice . He was not allowed to be represented by an advocate, time was not allowed even on ground of open heart surgery of his defence representative and he was pressurised to conduct the enquiry himself and time was not allowed to prepare himself for cross examining the management witnesses . The documents called for were not produced nor the workman was allowed to inspect of the documents . The enquiry officer resorted to favouritism and biasness . The workman was not allowed to defend himself and the findings of the enquiry officer is against the materials on record .

3. Further , the contention of the workman is that during pendency of the enquiry the management issued second charge- sheet on 24-6-2000 for an incident of alleged misconduct dated 25-2-1996 , the show cause of which was already filed by the workman on 17-11-1997 . According to the workman this belated charge - sheet shows the malafide intention of the management. The enquiry was conducted on this charge- sheet also . The workman was held guilty and was accordingly punished . The workman alleged in written Statement that documents called for by him were not produced by the management . The workman lost faith in the enquiry officer for his biased and partisan attitude. The complaint which was the basis of the charge - sheet was not produced. The statement of the complainant was in favour of the workman but the enquiry officer draw conclusion against the record. Further , it has been alleged in the W.S. that the findings of both the enquiries were perverse as none of the charges levelled against the workman stood proved and the punishment imposed on him are excessive , harsh and dis -proportionate . The workman has prayed that the award be given in his favour .

6. The management of United Bank of India filed writPetition C.W.J.C.No.14103 of 2005 against the award dated 7th April , 2005 passed by this Tribunal before the Hon'ble High Court , Patna in which orders were passed on 10-7-2006. It was held in the said order that the Industrial Tribunal while dealing with the 1st charge - sheet principally based the findings on denial of natural justice , did not consider the prejudice element suffered by reason of such denial . At the same time the Industrial Tribunal did not try to assimilate what could form truly the materials on record upon which the decision on the first charge- sheet couldbe sustained . To some extent that is also applicable in so far as the second charge- sheet is concerned . In a situation of this nature , if a decision is rendred that in fact there was no denial of Natural Justice for there was no prejudice , while the employee will suffer, but a very important aspect of the case of the employee that the decision is based on materials which could not be treated to be materials on record , would suffer. Accordingly, the Writ Petition was disposed of by quashing the impugned order of this Tribunal and by remitting the matter to this Tribunal to pass a fresh order within three months after hearing the parties at the argument stage. Accordingly, the parties have been heard at length in order to dispose of the matter afresh .

7. Upon the pleadings of the parties and the terms of reference and also keeping in view the observations/ directions of the Hon'ble High Court , Patna in C.W.J.C.No.14103 of 2005 the following points arise out fordecision:

4. The management in its written statement has stated that both the departmental enquiries were conducted properly in compliance with the principles of natural justice and the workman was allowed adequate opportunity to defend himself. The workman was given the copies of the documents and he was given opportunity to verify the documents a produced by the management . According to the management the workman alongwith his defence representative fully participated in the enquiry proceeding , examined his witnesses and cross - examined the management witnesses and exhibited the documents . He was given the written brief of the presenting officer and

(i) Whether the two demestic enquiries conducted bythe management of United Bank of India , Patna in the case of Shri Sharat Chandra Shrivastava , Cashier- cum-General Clerk were according to the Principles of Natural Justice?

6943

भारत का राजपत्र सितम्बर 15, 2007/ भाद्र 24 , 1929

[भाग II-खण्ड 3( ii) ]

( ii) Whether any prejudice was causedto the workman if the two demestic enquiries were conducted not according to the Principles of Natural Justice?

(iii) Whether the two enquiries were free from bias?

(iv) Whether the two charges levelled against the workman Shri Sharat Chandra Shrivastava stand proved from the materials brought on record by the management of United Bank of India during the enquiry?

(v) Whether the punishment imposed on the workman in the enquiry is just and legal ?

(vi) To what relief or reliefs the workman is entitled?

FINDINGS

Point Nos .( i) & ( ii) :

the photo copy of Enquiry Proceedings in five volumes (Exts , M/1-86 pages , M/2-89 pages , M/3-135 pages , M/4- 43 pages and M/5-104 pages) total 427 pages , photo copy ofExhibits (Ext . M- 165 pages) which include the exhibits of both the enquiry proceedings of both the parties : Other documents filed by the management are Regional Manager'sletter dated 11-3-1998 to the workman regarding enquiry (Ext . M/6) , Enquiry Officer's letter dated 21-5-1995 to workman regarding venue and date of enquiry (Ext . M/7) , workman's time petition dated 13-6-1998 concerning his Defence Representative's heart operation (Ext . M/8) , Enquiry Officer's information about deferring enquiry to 19-7-1998 ( Ext . M/ 9) , time petition dated 3-7-1998 of the workman (Ext . M/ 10 ) , Enquiry Officer's information to the workman dated 15-7-1998 about adjournment (Ext . M/ 11 ) , E. O.'s letter dated 19-8-1998 to the workman giving information about venue of enquiry ( Ext . M/ 12) , Enquiry Officer's letter dated 30-10-1998 to Chief Regional Manager to relieve defence representative to participate in the enquiry (Ext . M/ 13 ) , Defence Representative letter dated 14-12-1998 to fix up the date of enquiry in January, 1999 (Ext . M/ 14 ) , E. O.'s letter Chief Regional Manager dated 9-1-1999 to relieve the D.R. (Ext . M/ 15 ) , E. O.'s letter dt . 2-2-1999 informing adjournment (Ext . M/ 16 ) , workman's time petition dated 16-4-1999 on account of his illness (Ext . M/ 17) , E.O.'s letter dated 29-4-1999 regarding adjournment ( Ext . M/ 18 ) workman's petition dated 15-7-1999 for supply of documents exhibited in enquiry (Ext . M/ 19) E.O.'s letter dated 19-7-1999 about supply of written argument to workman ( Ext . M/20) , Regional Manager's letter dated 9-6-2001 to the workman about supply of copy of complain (Ext . M/ 21) , and E.O.'s letter dated 26-7-2002 regarding fixing the date of hearing of enquiry ( 2nd ) (Ext . M/ 22) .

8. Since both the points are interlinked , both the points are being discussed and considered together for convenience sake . Undisputedly the management issued two charge sheets to the workman , first on 23-12-1997 for doing riotious , disorderly and indecent behaviour in the premises of the Bank by using abusive and filthy language at the Branch Manager Shri Pramod Kumar on 25-11-1997 in St. Columbia's College Branch , Hazaribagh and second on 24-6-2006 " for doing acts prejudicial to the interest of the Bank " on 23-2-1996 while posted at Raina Branch of the Bank. The enquiries were conducted into both the charges by different enquiry officers . The Enquiry Officer of the first charge was Shri U.K.Sinha, Dy . Regional Manager (Law) United Bank of India , Bihar , South Region , Ranchi . Shri Bal Ram Singh , Manager , U.B.I. , Hazaribagh Branch was the Presenting Officer . The Enquiry Officer of the second charge was Shri Surya Narain Singh , Manager , UBI , Dhanbad Branch and Shri P.K. Biswas, Officer ofUBI , Ranchi was the Presenting Officer . In the 1st enquiry the workman was represented for sometime by Shri Ravindra Prasad , later on the workman himself and in the second enquiry Shri . S.S. Ambastha , General Secretary of the Union was the Defence Representative of the workman . There can be no dispute on the point that the onus to prove the charges lies on the party which alleges it . In the present case it was the management on whom the said onus to prove the charges levelled against the workman lied. Oral as well as documentary evidence were adduced on behalf ofthe management and the workman also adduced evidence in defence. The enquiry was conducted and the workman was held guilty and was accordingly punished .

10. The workman has also filed and got certain documents exhibited . The documents filed on behalf of the workman are photo copy of petition dated 20-6-1995 of workman addressed to St. Columbia's College Branch , Hazaribagh for sending work - sheet to make payment of arrears ( Ext . W) , Regional Manager's letter dated 9-11-2000 to workman for verification of docments and submission of reply ( Ext . W/ 1 ) , endorsement of Branch Manager on workman's petition dated 14-12-2000 about verification of documents ( Ext . M/ 2) , Regional Manager's letter dated 22-1-2001 to workman about verification of documents (Ext . W/3 ) , workman's representation dated 20-4-2001 for lifting his suspension (Ext . W/4) , Regional Manager's letter dated 30-10-2001 regarding verification of documents (Ext. W/5 ) , Workman's petition dated 10-10-2001 to Regional Manager for permission to verify the documents (Ext . W/ 6) , workman's petition dated 25-7-2002 (Ext. W/7) , workman's petition dated 19-6-2002. to Regional Manager to direct the E.O. to conduct enquiry without adjournment (Ext . W/8), Regional Manager's letter dated 9-4-2001 to workman for 9. In the present proceeding both the parties have adduced oral as well as doumentary evidence in support of their respective contentions . The management UBI examined three witnesses namely Manoj Kumar (M.W. 1) , Pramod Kumar (M. W. 2) and Krishan Murari Prasad (M.W. 3) . The workman Sharat Chandra Shrivastava alone deposed for himself as W. W. 1. The management has filed 6944

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verification of document (Ext . W/9 ) , workman's application dated 12-12-2000 and 20-4-2001 regarding verification ofdocuments (Ext . W/ 10 & W/11 ) , workman's petition dated 20-4-2001 to Regional Manager for making available the copy of complaint (Ext . W/ 12) , workman's petition dated 25-4-2001 to Branch Manager , Rania Branch to make available the Office order Book and the attendance register (Ext. W/ 13 ) , workman's application dated 1-5-2002 to Dy. General Manager to change the Enquiry Officer (Ext . W/ 14) , workman's application dated 25-7-2002 to Regional Manager with the request to change the E.O. of 2nd enquiry (Ext . W/ 15), Circular of S.B.I. dated 28-07-1998 regarding subsistence allowance (Ext . W/ 16) , Revised D.A. Chart of Subordinate Staff w.e.f. February , 2005 (Ext . W/ 17) , workman's representation dated 27-2-2003to Regional Manager , Patna regarding annual increment during suspension (Ext . W/ 18) , Management reply dated 27-6-2003 (Ext . W/19), Workman's Pay- slip (Ext . W/20 ) , and Workman's Pay Certificate dated 11-10-2001 (Ext . W/21) .

11. It has been submitted on behalf of the workman that the two domestic enquiries were conducted in most unfair manner without deserving the Principles of Natural Justice and the same caused prejudice to the workman . The instance of violation of the Principles of Natural Justice according to the workman are that the workman was not allowed to be represented by an advocate , time was not allowed to him even on the ground of open- heart surgery ofhis Defence Representative , the workman was not allowed to engage another Defence Representative , he was pressurised to defend himself in the enquiry , tinre was not allowed to the workman to prepare himself to cross- examine the management witnesses , the venue of enquiry was subsequently changed without consulting the workman and the venue of enquiry was not changed on the genuine request of the workman, the documents called for by the workman were not produced and the workman was not allowed to inspect the documents produced. Accordingly, it has been contended by the workman that he was not allowedto defend himself properly .

12. As regard not permitted to be representated by an advocate the workman (W.W. 1) has stated before this Tribunal that his prayer to permit him to be represented by an advocate was turned down by the Enquiry Officer , Page- 211 ofEnquiry Proceeding ( Page - 35 of Ext . M/3 shows that the workman's prayer to allow him to be representated by an advocate was turned down by the Enquiry Officer on the ground that as per paragraph 19.12 of Bipartite Settlement a delinquent is not entitled to engage a lawyer to defend him if the Presenting Officer is not a legal practitioner. Let me examine paragrph 19.12 of Bipartite Settlement which runs as follows :

(a) An employee against whom disciplinary action is proposed or likely to be taken shall be given

[PART II-SEC. 3 ( ii ) ] a charge - sheet clearly setting forth the circumstances appearing against him an.........in his defence .

He shall also be permitted to be defended :

(i)(x) by a representative of registered trade union of Bank Employees of which he is a member on the date first notifed for the commencement of the enquiry ;

(y) where the employee is not member of any trade union of Bank Employees on the aforesaid date , by a representative f a registered trade union of employees ofthe Bank in which he is employed;

(ii) at the request of the said trade union by a representative of the said federation or All India Organisation to which such union is affiliated;

(iii) with the Bank's permission , by a lawyer.

The perusal of above - noted paragraph 19.12 of Bipartite Settlement shows that it has nowhere been mentioned in the said provision that a delinquent can be represented by a legal practitioner only when the Representating Officer is a legal practitioner . The said paragraph puts no bar to the representation of a workman by a legal practitioner , it simply lays down a condition of obtaining permission from the Bank. There can be no two opinions on the point that to defend oneself is a valuable right, more so in case which may result in dismissal of the workman, the natural Justice demands that the workman should have been permitted to be representated by an advocate . It may be mentioned here that the Enquiry Proceeding (Ext . M/3 ) shows that no objection by the Presenting Officer was raised on the prayer of the workman to be permitted to be represented by an Advocate . Under the circumstances discussed above I find that by denying permission to the workman to be represented by a legal practitioner the Enquiry Officer committed violation of the Principle of Natual Justice . But nothing has been shown by the workman as to how he was prejudiced nor I find that any predjudice has been caused to the workman by the denial of permission to be representated by an advocate .

13. Another grievance of the workman is about not allowing adjournment by the Enquiry Officer even on the ground of heart surgery of workman's Defence Representative . From the enquiry proceeding at page -201 (page - 25 of Ext . M/3 ) it appears that the workman on 17-5-1999 made a prayer to adjourn the enquiry as his Defence Representative had undergone heart- surgery in AIIMS , New Delhi . From the Enquiry Procceding page 169 (Ext . M/2 -page - 82 ) it appears that on 4-2-1999 the 6945 [ भाग II-खण्ड 3( ii) ]

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From the enquiry proceeding it transpires that the workman was given reasonable opportunity to defend himself. He was given the chance to cross - examine the management witnesses and he cross - examined them , though the workman sought for time to prepare himself to cross- examine the management witnesses the refusal of which cannot be said to be prejuducial to the workman . The enquiry proceeding shows that the workman's prayer of adjournment was allowed except at one or two occasions.

workman told the Enquiry Officer that his Defence Representative will not be able to attend the proceeding. Theworkman requested the Enquiry Officer to allow himto defend himself. That shows that the workman was defending himself without his Defence Representative from several months before his Defence Representative had undergone heart surgery . Under the circumstances I find thatby not allowing adjournment sought for on the ground ofheart surgery ofworkman's Defence Representative the Enquiry Officer can -not be said to have violated the Principles of Natural Justice or to have caused prejudice to theworkman.

16. From pages 10 and 11 of enquiry proceeding (Ext . M/1) it appears that 31-7-1998 a request was made on behalf of the workman to fix up the venue of enquiry on any place connected by rail as the Defence Representative was a heart patient . After hearing both the parties the venue of enquiry was fixed at Bank's Staff Training Centre at Patna on3-9-98. The Enquiry Officer by taking unilateral decision issued letter dated 19-9-1998 (Ext . ME- 12 in the proceeding, Ext.M/12 in this reference case) and changed the venue from Patna to Hazaribagh on the gound that since the place ofoccurrence was at Hazaribagh the venue of enquiry could not be at Patna. The management has not shown any such rule that the venue of enquiry must be at the place of occurrence. The venue of enquiry was fixed at Patna keeping in view the illness and hardship of the Defence Representative , recalling of which is certainly violation of the Principle of Natural Justice . It is an admitted fact that the workman alongwith his Defence Representative participated in equiry proceeding on 3-9-98 and as such Ido not find that any prejudice was caused to the workman from the shifting of venue of enquiry from Patna to Hazaribagh .

14. Another grievance of the workman which also relates to adjournment is that he was not allowed time to engage another Defence Representative . Page- 208 of enquiry proceeding (page -32 of Ext.M/ 3 ) shows that on 18-5-99 the workman made a prayer for adjournment ofthe enquiry proceeding so that he may engage another Defence Representative. The prayer was disallowed by the Enquiry Officer on the ground that the workman had enough time since 4-2-99 when his Defence Representative Shri Rabindra Prasad absented from enquiry due to illness. The Enquiry Officer to my mind was right in his finding . Moreover it neither required permission of the Enquiry Officer nor time to engage another Defence Representative by the workman . He, the workman could engage any Defence Representative ofhis own choice . Under the circumstances, I find that the Enquiry Officer by not allowing adjournment for engaging another Defence Representative neither violated the Principle of Natural Justice nor caused prejudice, to the workman . I have alreadydiscussed above that from the enquiry proceeding it transpires that on 4-2-99 the workman submitted that his Defence Representative will not be able to attend the proceeding and requested the Enquiry Officer to allow him to defend himself and that was allowed. Under the circumstances I find no substance in the contention that the workman was pressurised to defend himself in the enquiry .

From pages 205-206 of enquiry proceeding (Ext . M/ 3 -pages 29-30 ) it appears that the workman made a request to transfer the venue of enquiry from St. Columba'sCollege Branch to main Branch , Hazaribagh so that the witnesses may depose in a free and frank atmosphere . It was not considered to be a Special reason to change the venue of enquiry and the complainant Pramod Kumar had already been transferred from there and hence the prayer was rejected by the Enquiry Officer by which no prejudice' appears to have caused to the workman .

15. Another grievance of the workman regarding adjournment is that he was not allowed to prepare himself to cross examine the management witnesses . Reference has been made on behalf of the workman in this regardto page - 226 of enquiry proceeding (page -50 of Ext . M/3 ) that even the prayer of one day adjournment to prepare himself forcross -examination of Ram Prabesh Prasad (M.W.3 ) was not allowed. From page - 224 of the examination- in-chief of the said witness of the management was concluded on 19-5-99 and 20-5-99 was fixed for cross - examination . Thus workman automatically got one daytime to prepare himself for cross - examination of the management witness . The workman has not shown as to how he was prejudiced by the said denial of Enquiry Officer to adjourn the proceeding. Under the circumstances. I find that from the denial of Enquiry Officer to adjourn the proceeding , Natural Justice was not violated nor any prejudice was caused to the workman.

17. Coming to the workman's grievance regarding non-production of the document called for by him it appears that the workman (W.W.1) stated before this Tribunal that . hewas not given the documents which he called for from the management . In second enquiry also he demanded documents to answer the show cause but the same were supplied late and that too. incomplete . From page- 165 of enquiry proceeding (page - 78 of Ext . M/2) it appears that on 28-12-98 the workman filed a petition (Ext. DE) in the enquiry proceeding calling for certain documents from the management . Page - 170 of enquiry proceding (page -83 of 3677Gl/07-6 6946

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petition should be filed before the Competent Authority but from the enquiry proceeding it does not transpire that any move to change the Enquiry Officer was made on behalf ofthe workman before the Competent Authority. From page 38,39 of enquiry proceeding it transpires that certain allegations were lèvelled against the Enquiry Officer on behalf of the workman and the Enquiry Officer gave the same reply to move' the Disciplinary Authority , but the workman did not move . I may mention here that moveto change the Enquiry Officer can be made before the higher authorities and that required neither permission of the Enquiry Officer nor any adjournment . Under the circumstances discussed above I find that no prejudice was caused to the workman by the denial of Enquiry Officer to allow adjournment to move the Disciplinary Authority.

19. Thus on careful consideration of the instances ofviolation of Principle of Natural Justice alleged by the workman in the two domestic enquiries conducted by the management come to the conclusion that the Principle of Natural Justice was violated at two instances , when the prayer to engage an advocate as defence representative was disallowed and when the venue of enquiry fixed at Patna was recalled unilaterally but on those occasions also no prejudiced was caused to the workman . I may add that the workman was given enough opportunity to cross- examine the management witnesses and to adduce evidence on his own behalf. There has been no other violation of Principles of Natural Justice. This point is accordingly decided .

Point No. (III) :

Ext. M/2) shows that on 4-2-99 the workman requested to call for two documents , the FIR and Release letter described at serial Nos . (a1 ) and ( a -2) of the petition ( DE - 7) . The Enquiry Officer allowed the prayer to call for the FIR but disallowed the prayer to call for the Release Letter on the ground that the facts stated in the Release Letter were already admitted by the management witnesses . The workman has not stated before this Tribunal as to what he wanted to prove by the release letter . The FIR which related to the embezzlement of Rs . 65,000 was not produced by the management . The workman was not connected with that incident. Hence non - production of the FIR did in no way prejudiced the workman . It appears that the relevancy of. other documents mentioned at serial Nos. (b) , (c) , ( d) and (e) of the petition dated 28-12-1998 were not shown and hence the same were not called for. The proceeding of second enquiry shows that on 24-1-2002 the workman called for certain documents . The called for documents were supplied to him except Office Order Book of Rania Branch. Theworkman (W.W.1) in his statement before this Tribunal has admitted supply of other documents . As regards non supply of Office Order Book of Rania Branch the workman has not shown as to how non - production of Office Order Book has prejudiced him . Under the circumstances discussed above I find that only a few documents called for were not made available to the workman and non- production of the said few documents had in no way prejudiced the workman . It has been submitted on behalf of the workman that in connection with second enquiry the workman vide letter dated 20-4-2001 (Ext . W/2 in this Reference Case ) demanded the complaint petition on which the charge sheet of 2nd enquiry was issued . That document was not supplied to him to answer the charge . In this regard the workman in his statement before this Tribunal has riot stated that he was not given the complaint petition and he was prejudiced by the non -supply of the same . Moreover the charge sheet given to the workman had all the details of the allegations levelled against him . Under the circumstances it can not be said that the workman could not answer the charge or defend himself properly in absence ofthe complaint petition.

18. Besides above instances of violation of Principles ofNatural Justice alleged by the workman it has also been alleged that the workman lost faith in the Enquiry Officer due to the partisan attitude of the Enquiry Officer and prayed to stop the proceeding to enable him to approach the Disciplinary Authority for change of the Enquiry Officer but the Enquiry Officer rejected the said prayer by which the workman was greatly prejudiced. Page- 14 of enquiry proceeding (page 14 of Ext . M/ 1 ) shows that on 3-9-98 a petition (marked Ext . D -3 in the enquiry proceeding ) was filed on behalf of the workman before the Enquiry Officer with the request that he (the Enquiry Officer ) should withdraw himself from enquiry as the workman had lost faith in him. The Enquiry Officer mentioned that the said

20. The workman (W.W.1) has stated before this Tribunal that he remained posted in St. Columba's College Branch of U.B.I. from 1986 to 1995 on the post of Clerk- cum-Cashier . He was an active member of the Union and also the Unit Secretary of Branch Unit . He has further stated that due to union activities he had no good relationship with the management . He was transferred four times from St. Columba's College Branch to Rania Branch and from Rania Branch to St. Columba's College Branch within the span of six months . He has further stated that he espoused the cause of the employees and hence the management was annoyed with him . It has been submitted on behalf of the workman that he was frequently transferred from St. Columba'sCollege Branch , he and his wife were compelled to visit St. Columba's College Branch several times on the pretext of completing the documents of House Building Loanwhich he had taken in the year 1990. Accordingly, it has been contended on behalf of the workman that the Enquiry Officer conducted the enquiry proceeding in biased manner . To substantiate the same it has been stated by the workman that due to bias his prayer to be represented by an advocate was not allowed , his prayer of adjournment on the ground of open - hert surgery of his Defence Representative was rejected , the venue of enquiry was 6947

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[भाग II-खण्ड 3( ii) ]

fixed at Patna on his request but the same was recalled unilaterally , the documents called for by him were not produced , leading questions of the management were allowed and the genuine questions asked by him (the workman) were rejected as irrelevant . As regards the second enquiry the workman has stated that he called for the documents to file show cause , but the same were not supplied . Again after receiving charge -sheet he called for the documents . The documents were supplied late that too incomplete . He was not given time to produce defence 'witness . His prayer to change the Enquiry Officer was rejected. From the aforesaid action and behaviour of the management the workman gathered that the management was biased and the enquiries made by the management were not free from bias .

21. From the materials on record I find that the 1st enquiry was initiated on the complaint of Pramod Kumar , the then Branch Manager of St. Columa's College Branch forthe incident alleged to have been committed on 25-11-97 in his Chamber . The second enquiry was initiated for doing the acts prejudicial to the interest of the Bank on 23-2-1996 when the workman was posted in Rania Branch. At the very outset I would like to mention that the cause that the workman being the Unit Secretary of Empoyees ' Union espoused the cause of the employees and hence the management was biased , does not appear to be convincing reason for the management being biased with the workmen. From the statement of Parmod Kumar (M.W.2 in enquiry) atpage - 146 of enquiry proceedings (page 59 of Ext.M/2) it appears that Pramod Kumar joined St. Columba's College Branch on 25-9-95 when the workman was on leave till 30-9-95. It also transpires from Ext . DE- 17 of enquiry proceeding (page 72 of Ext . Min Reference case ) that the workman was relieved on 6-10-95 to joint at Rania Branch . Thereafter Pramod Kumar and the workman never worked together . Thus the workman worked with Pramod Kumar for a few days only . Hence the question of Pramod Kumar being biased with the workman does not arise .

to ask leading questionsto the management witnesses and rejecting the genuine question of the workman as irrelevant, rejecting the prayer to change the Enquiry Officer. and also not allowing to adduce defence in the second enquiry the workman inferred that the enquiry was not from bias . I have discussed almost all those points while dealing with point Nos . (I) and ( II ) violation of Princíple of Natural Justice and the prejudice caused to the workman there from. At the cost of repetition . I would like to refer in short that refusal of the permission to be represented by an advocate though was against the Principle of Natural Justice, was due to wrong interpretation of paragraph 19.12 of Bipartite Settlement . The denial of adjournment on 17-5-95 sought for on the ground of illness of the Defence Representative and also denial of adjournment on 18-5-95 sought for on the groundto engage another Defence Representative and rejecting the prayer to change the Enquiry Officer with the direction to move the Higher Authorities were with reasons . I may mention that barring a few occasions the prayer of adjournment made on behalf of the workman were adjusted by the Enquiry Officer . The documents called for were supplied to the workman except a few which I have already discussed while dealing with point Nos . ( I) & ( II ) above . No specific example has been cited to show that the genuine question of the workman was rejected as irrelevant . From perusal of the enquiry proceeding it appears that the workman was allowed to participate fully in the enquiry . He was allowed to produce documentary evidence as well as the oral evidence . In 1st ' enquiry the workman himself deposed and in 2nd enquiry he examined one witness . The workman and his Defence Representative cross - examined the management witnesses . On conclusion of the enquiry the workman was given the briefs of the Presenting Officer and after hearing and considering the written argument of the Enquiry Report was submitted a copy of which was given to the workman and after hearing the order of punishment was passed . I may mention here that nothing has been brought out on behalf of the workman to show that the two Enquiry Officers namely Shri U.K. Sinha and Shri Surya Narain Singh had any personal grudge against the workman . Considering everything discussed above I find that the two enquiries held by the management against the workman were free from bias . This point is decided accordindly.

Point No. (iv) :

22. As regards frequent transfer from St. Columa's College, Branch to Rania and back to St. Columa'sCollege Branch the workman ( W.W.1) in exam - in - chief before this Tribunal stated that he was transferred four times within six months due to his union activities but in para 8 of his cross -exam he(W. W.1) has stated that he was transferred onadministrative grounds . Under the circumstances from frequent transfer it cannot be gathered that the management was biased with him.

23. As already noted above , from the actions of the Enquiry Officer viz , not permitting the workman to be represented by an advocate , not granting adjournment on the ground of illness of the Defence Representative , abruptly shifting venue of enquiry from Patna to Hazaribagh , non supply of document called for, allowing

24. The report forming basis of the first enquiry has been marked Ext . M E - 4 ( at page 8-10 of Ext.M) on behalf of the management . From perusal of the same it appears that the complainant Branch Manager Pramod Kumar made a report to the Regional Manager regarding anincidence which took place in his chamber on 25-11-97 at about 11.15 a.m. According to complaint the workman had gone to the office of the complainant on the instruction of the Regional Manager's Office for filling up 6948

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[PART II-SEC. 3 (ii) ] the application form of House Buliding Loan . The work- manfilled up the form and then started shouting as towhy the person from the branch office visited his house in his absence whereas according to theworkman on the objec- tionable utternaces of the Branch Manager exchange of hot words took place between him and the Branch Manager. During the enquiry proceeding the management exmamined altogether 8 withnesses namely Manoj Kumar . Dy. Manager St. Columbia's College Branch (M. .W.1), Pramod Kumar , the complainant (M. W. 2) , Ram Prabesh Prasad, (M. W. 3), Krishna Kumar Agrawal (M. W. 4) , Sanjay Kumar Shrivastava (M.W.5) and Raghubansh Mani (M. W.6) all the four Cashier- cum-General Clerks of St.Columbia's College Branch , Jagat Pal Singh, Officer, St. Columbia's College Branch (M. W. 7) and Radhe Shyam Ambastha , a Local University Professor . The workman examined altogether 5 witnesses including himself namely , Samsul Masih ( DW- 1), Somech Mishra ( DW - 2) , Both account holders of that branch, Umesh Ram , Cash - cum- Daftari of the said branch ( DW-3 ), Ashok Kumar Sinha, Advocate (DW -4 ) and the workman fiimself (DW- 5).

answer to question No. 16 at page 237 of Ext . M - 37 he has stated that the contents of the report is totally wrong . Sanjay Kumar Shrivastava (MW- 5) has stated that on 25-11-97 somediscussion was going on between the work- man and the Branch Manager in the chamber but the words were not clearly audible . He has also stated that abso- lutely no disturbance was caused to him in his work due to the discussion . Raghubansh Mani (MW- 6) has also stated the same. Jagat Pal Singh (MW- 7) , an Officer of the Bank has stated that on 25-11-97 the workman created nuisance in the chamber of the Branch Manager and there- after in the chamber of Dy. Branch Manager . He has stated that the workman abused the Branch Manager and threat- ened the Dy. Branch Manager . I may mention that there is no allegation/charge that the workman went in the Cham- ber of the Dy . Branch Manager and threatened him . Thus the statement of Jagat Pal Singh is contradictory to the charge and the statement of the Branch Manager (MW2) and the Dy . Branch Manager (MW1 ) . Radhe Shyam Ambastha (MW8) is the head of Department of Philoso- phy in Local Vinoba Bhave University. He has stated that on25-11-97 he was getting into the Chamber of the Branch Manager , he heard indecent language being used in the Chamber of Dy. Branch Manager and he returned back . He has not stated about any incident in the Chamber of Branch Manager. He has stated that he had put his signa- ture on the report but has not clarified when and where . It appears from the enquiry proceeding that after a few ques- tion in cross -examination there was a lunch break and there- after this witness was not produced by the management for cross - examination and hence the statement of MW - 8 isnot worth cosideration . He is the relative of the Branch. Manager as admitted by the Branch Manager (MW2) in reply to question No. 109 in cross- examination . Thus 1 find that MW- 8 is an interested witness . Since the said witness was not produced for cross -examination after a few question his statement must be discarded .

25. There is no dispute on the point rather it is an admitted fact that on 25-11-97 the workman had gone to the Chamber of the Branch Manager to fill up the House Building Loan form and he filled up the form. Acoording to the complaint petition and the charge - sheet given to the workman the cause of annoyance of the workman for which he abused the Branch Manager and created noisy scene and for which the charge against him for doing riotious , disorderly and indecent behaviour in the premises of the Bank was framed , is that the persons from the branch visited his house in his absence . The management has not adduced any evidence to substanti- ate that person from the branch had visited his ( the workman) house in his absence . Thus the very root cause of the alleged ocourrence has not been proved on behalf of the management .

27. The statement of MW1 is in total 82 pages from page 55 of Ext.M - 1 to page 35 of Ext . M-2 . Alltogether 17 questions have been asked in examination- in- chief and 145 questions in cross - examination . In examination - in- chief MW1 has stated that on 25-11-97 he was in the office and had seen the workman used abusive and filthy lan- guage . I may mention here that he stated all that in answer to the leading question put on behalf of the management which is totally illegal and no evidentiary value to such statements can be given . Further , it appears that the wit- ness during examination - in- chief was given in hand the report of the complainant and the witness completed rest ofhis examination - in- chief by looking into the same . Which is again totally illegal . Under the circumstances I find that the statement of MW1 cannot be used to prove the charges framed against the workman .

26. I have gone through the statements of the wit- nesses made before the Enquiry Officer. I will discuss the statements of MW - 1 and MW- 2 later on . Ram Prabesh Prasad (MW - 3 ) has state that he was present in Bank on 25-11-97 . The workman had come to the Bank on that date . He has stated that he does not remember that any nui- sance was created in the Bank on that date . He admitted his signature on the report which the complainant had sent but stated that others were putting signature so he also put that signature . In reply of question No. 10 at page 228 of enquiry proceeding he stated that he had no distur- bance in his work from coming of the workman in the branch . Krishna Kumar Agrawal (MW4) has also stated that on 25-11-97 he was in the Bank . He has also stated that no nuisance was created on that date in the Bank nor he had any disturbance in his work . As regards his signa- ture on the report ( Ext . M -4) he has stated that he put that signature on the direction of the Branch Manager . In

28. The statement of complainant Branch Manager , Pramod Kumar (MW2 ) runs from page 46 of Ext . M - 2 to 6949 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

ficer that the charge stands proved is perverse , illegal and worng. Since the management has failed to prove the charge I need not discuss the statements of D.W.S. page 20 of Ext . M -3 in total 63 pages . In all 27 questions were put to him examination -in - chief and 125 questions in cross -examination . In examination - in -chief he has stated that on 25-11-97 the workman visited St. Columbia's College Branch to complete the House Building Loan documents . MW 2 has further stated that after completing the form the workman started murmuring as follows : then the witness stated the abusive and filthy language allegedly. used by the workman . I am very sure that the Branch Manager knows the meaning of 'murmuring' and also the difference between ' murmuring' and 'shouting' .According to M.W. 2 the workman murmurred and not shouted the abusive and filthy languege . It can be marked by any body thatby murmuring one can not be said to have created noise or nuisance nor to have done riotious , disorderly and indecent behaviour . On the above discussions i find that the statements of MW.1,2 and 7 are contradictory to one another and are not reliable .

31. The second enquiry is with regard to the charge sheet dated 24-6-2000 . There are two charges in that charge-sheet, one the workman while working in Cash De- partment received a deposit of Rs . 500 ( Rs . five hundred) only from one Customer Niranjan Singh Kherwar but tore up the deposit slip and threw the same in the waste -paper- basket, another charges is of making false declaration be- fore the Bank that he is the only son of his parents . As regards the 1st charge of the 2nd enquiry the management has examined one witness Krishna Murari Prasad who is a subordinate staff of Rania Branch of the Bank . He has stated that on 23-2-1996 he was present on duty . Niranjan Singh Kherwar came in the branch, got a deposit challan filled up from Jaimasi Kandulans . This workman called Niranjan Singh Kherwar , took money and the challanand after Niranjan Singh Kherwar left the bank the workman. tore up the challan and threw in the basket . He ( Krishana Murari Prasad) Jaimasi Kundulana and Sikandar Nag (both Home Guards) picked up the pieces , pasted and gave to the Branch Manager . The management has neither . examined Jaimasi Kandulana nor Sikandar Nag in the en- quiry. Niranjan Singh Kherwar has been examined on be half of the workman and he has stated that on 23-2-96 he reached at the closing hour and requested the Bank Man- ager to receive the Cash . The Branch Manager received the Cash Rs . 500/ - (Rs . five hundred) only from him and told him to come after a few days to collect the receipt . Niranjan Singh Kherwar has clearly stated that he did not handover the Cash to the workman . Under the circum- stances I find that the management has failed in proving the 1st charge of the second enquiry .

29. Samsul Masih ( W.W.1 ) and Somesh Mishra (W.W.2) the account holders of that branch have stated on behalf of the workman that on 25-11-97 they visited the said Branch in the forenoon and there was no obstruction in the work. Umesh Ram ( W.W. -3 ) an employee of that Bank has stated that he did not see any occurrence , in fact he was out of the Bank from 11.30 to 1.30 on 25-11-97. He has further stated that when he returned the Branch Man- ager called him and told about the occurrence , he cannot say on what paper he had put his signature . Ashok Kumar Sinha (DW4) an advocate by profession has stated that the Branch Manager had called him in connection with House Building Loan and he was present in Bank from 11.45 to 12.00 on 25-11-97 but he did not see any occur- rence nor he had any distrbance in the work. DW -5 is the workman himself who has stated that he told his witnesses to depose in the enquiry, which is but natural .

32. As regards the 2nd charge of the 2nd enquiry it appears that no enquiry has been done on the facts as to whether the workman is the only son of his parents or not and the Enquiry Officer held the charges proved by say- ing that the typing mistake pleaded by the workman is not tenable . There was no enquiry to the facts alleged/ pleaded on behalf of the parties and yet the charge was held to have been proved . Under the circumstances I find that the Enquiry Officer illegally and wrongly held this charge to have been proved.

30. To sum up I have to mention that the onus to prove the charge lavelled against the workman was on the management and it is only when the charges have been proved by the management the onus shiftsto the work- man to disprove the same. The management examined al- together 8 witnesses out of which one M.W.- 8 was not produced for cross - examination after few question and as such his statement can not be considered . M.W. NOs . 3to 6have not proved that the workman did riotious , indecent and disorderly behaviour . I have discussed in the preced- ing paragraph No. 27 above that M.W.1 was asked lead- ing question in examination - in- chief and completed rest part of his examination - in -chiefby looking into the com- plaint Ext . ME - 4 . I have already discussed that the state- ments of M.W.1 , 2 , and 7 are contradictory and the comlainant (M. W. 2) himself has not proved that the work- man shouted abusive and filthy language. Accordingly , I find that from the legal evidence adduced on behalf of the management the charge against the workman in the first enquiry is not proved and the finding of the Enquiry Of-

33. Keeping in view the discussions made above and the findings arrived at I find and hold that the deci- sions of the Enquiry Officers that the charges in both the enquiries have been proved against the workman are ille- gal and not based on the materials on record . Accordingly I find and held that the charges levelled against the work- man do not stand proved from the materials on record brought by the management of United Bank of India in the two enquiries. This point No. (iv) is accordingly decided.

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THE GAZETTE OF INDIA : SEPTEMBER 15, 2007 /BHADRA 24, 1929 [PART II-SEC . 3 (ii)] Point No. (v) :

34. I have already discussed and held above that the charges against the workman in the two enquiries con- ductedby the management of United Bank of India have been wrongly held to have been proved. Under the cir- cumstances I find that imposing punishment on the work- man is illegal and unjust. Now I will consider as to whether the punishment imposed on the workman is legal and jus- tified assuming that in both the enquiries conducted by the management of United Bank of India against the work- man charges have been rightly held to have been proved . In this connection I find that on the basis of the findings in 1st enquiry the workman has been awarded on 18-1-2001 the punishment of lowering down basic pay by two stages and on the basis of the findings in 2nd enquiry the workman on 13-1-2003 has been awarded the punish- ment of lowering down basic pay by one stage . Accord- ing to Bipartite Settlement between the Banks and their workman commonly known as Sastry Award the provi- sion of punishment for gross misconduct Is-

man staff in accordance with the provisions of award/ Bipartite Settlement. The workman made a representation on 27-2-2003 (vide Ext . W/ 18) to the Chief Regional Man- ager , Bihar Region. The reply came on 27-2-2003 (Ext . W/ 19) that the Disciplinary Authority while revoking sus- pension and inflicting punishment expressed that the work- man is not entitled to anything except the subsistence allowances paid to him. I may mention in this regard that the enquiry prolonged for years one after another and the workman remained under suspension for long time. Under the circumstances I find that the workman is entitled to the yearly increment during suspension period and the subsistence allowance calculated accordingly. I also find that lowering down three stages of the basic pay of De- cember, 1997 is also unjust and illagal . Thus I have con- sidered both the situations , charges not having been proved and charges assumed to have been proved . Since the charges against the workman have not been proved the punishment imposed on him is illegal and unjust. In case the charges assumed to have been proved also the punishment iswrong and illegal . This point is accordingly decided.

Point No(vi)

37. I have already held above that the management of United Bank of India has not been able to prove the charges levelled against workman Sharat Chandra Shri - vastava. Hence the punishment imposed on the workman is not maintainable and the same are fit to be set aside . Further I find that the workman is entitled to full pay and all benefits of the suspension period . This point is ac- cordingly decided.

"to have his pay reduced to the next lower stage upto a maximum period of two years , in case he has reached the maximum in the scale of pay. " That simply means that an employee who has not reached the maximum of his pay scale can not be awarded the punishment of lowering down his basic pay his increment at best can be stopped . The Enuqiry Officer does not say that workman Sharat Chandra Shrivasteva had reached at the maximum of his pay scale rather Ext . W/17 ( in this reference case ) shows that the workman has not reached at the maximum of his basic pay . Under the circumstances I find and hold that the punish- ment imposed on the workman in the enquiries are illegal and unjust .

35. It has been submitted on behalf of the workman that he was not given increment during suspension period and the management lowered down three stages from his basic pay which he was getting in December , 1997 when he was put under suspension . The punishment inflicted was put into effect after 13-1-2003 . The increment during the suspension period was neither allowed nor taken into account by the management . To my mind the basic pay of the workman should have been fixed on 13-1-2003 with all yearly increments and then three stages should have been lowered down if it had reached at the maximum but the management by lowering down basic pay three stages from the basic pay of December, 1997 has virtually lowered down the basic pay of the workman by eight stages which is not only harsh it is illegal also .

38. In the result I find and hold that the two domes- tic enquiries conducted by the management of United Bank of India , Patna in the case of Shri Sharat Chandra Shrivastava, Cashier -cum- General Clerk were according to the Principles of Natural Justice except on two occa- sions but by that no prejudice was caused to the workman and the two domestic enquiries were free from bias . I fur- ther find and hold that the charges levelled against the workman Shri Sharat Chandra Shrivastava do not stand proved from the materials on record brought by the man- agement during the enquiries and the findings of the En- quiry Officers that the charges stand proved are wrong, illegal and preverse , I further find and hold that the pun- ishment inflicted on the workman in the enquiry is illegal and unjustified and the same is fit to be set aside . I further find that the workman is entitled to full pay and all other benefits of his suspension period . The management is directed to make payment of the same within two months from the date of publication of the Award.

39. And this is myAward.

36. The workman has filed the circular of S.B.I. dated 28-7-1998 regarding subsistence allowance (Ext . W/16 in Ref.Case) according to which increments which fell due during the period of suspension should be recknoned for calculation of subsistence allowance in respect of work-

VASUDEO RAM, Presiding Officer [ भाग II-खण्ड 3 ( ii) ]

नई दिल्ली, 21 अगस्त , 2007

का.आ. 2608.-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 12/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था । [सं. एल-12012/324/1998 - आईआर( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 21st August , 2007

S.O. 2608. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 12/ 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 21-8-2007 .

[No. L- 12012/324/1998 - 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. 12/2004

[Principal Labour Court CGID No. 13/99 ] (Inthe matter ofthe 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 A. Jakkiria Basha

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भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 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. 13/99 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. 12/2004 .

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

"Whether the demand of the workman 'Shri A. Jakkiria Basha, 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

The Assistant General Manager, : II Party/Management State Bank of India, Zonal Office, Coimbatore .

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram , Authorised Representative .

M/ s . K. S. Sundar

For the Management :

Advocates

AWARD

1. The Central Government Ministry of Labour, vide Order No. L- 12012/324/98 - IR (B- 1 ) dated 1-2-1999 has The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Bhavani Main branch on 6-8-81. 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 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 interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of Bhavani 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 6-8-81 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working as such 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 at Chitter branch the Manager of the branch informed the Petitioner orally on 31-3-1997 that his 6952

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3 (ii)] services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non - employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent /Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since 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 ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

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. 301in waitlist of Zonal Office, Combatore . So far 211 wait listed temporary candidates , out of 705waitlisted 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 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 vacaricies 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 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 [भाग II-खण्ड 3 (ii ) ]

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 listdrawn for appointment of daily wages/casual labour. Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated 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 :-

(1) "Whether"W the demand of the Petitioner in Wait List No. 301 for restoring the wait list of temporary messengers in the Respondent /Bank and consequential appointment thereupon as temporary messenger is justified?" 3677 G1/07-7

6953

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 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 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 . 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 15 , 2007/BHADRA 24, 1929

[PART II SEC . 3 (ii) ]

3 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 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 MW 1 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 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 1 is illegal . Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex. W8. Further , the appointment of daily wage basis for regular messengerial jobs 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 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 imessengers 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 thatsettlement 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-

[भाग 11-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 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 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 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 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 , 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

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reférence 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 connecteddisputes 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 aremade with ulterior motive . Further, they have concealed 6956

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[PART II SEC. 3 (ii)]

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.

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 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 ILLJ 308 K.C.P. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18(1 ) of the I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18(3 ). A settlement of the first category has limited application andbinds merely parties to it and settlement of the second category made with a recognised majority union has

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[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 of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN 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 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 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 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. 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 6958

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[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 12which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and 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 ta 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 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 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

6959 [ भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

not a bona fide in nature or it has been arrived at on account ofmala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further , the representative for the Petitioner contended that in 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 .

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.

K. JAYARAMAN, Presiding Officer

Witnesses Examined :-

For the Petitioner

WW1 Sri A. Sakkiria Basha 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.

For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan

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 for implementation of Ex. M1 .

6960

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

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 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 instructions in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

W9 23-11-81 Хегоx copy of the service certificate issued by Bhavani Branch .

W10 08-08-83 Xerox copy of the service certificate issued by Sithar Branch .

W11 01-11-96 Xerox copy of the service certificate issued by Olagadam Branch.

W12 31-12-95 Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate care& service conditions .

W13 Nil

Xerox copy of the Vol . III of Reference book on Staffmaters upto 31-12-95 .

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of messenger post-V. Muralikannan ..

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of messenger post-K. Subburaj .

W16 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of messenger post-J. Velmurugan.

W17 17-03-97 Xerox copy of the service particulars-- J. Velmurugan.

W18 26-03-97 Xerox copy of the letter advisting selection ofpart time Menial--G . Pandí.

W19 31-03-97 Xerox copy of the appointment order to SriG. Pandi.

[PART II-SEC. 3 (ii) ] W20 Feb. 2005 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 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 Head Office circular No. 28 regarding Norms for sanction of messinger staff.

W23 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W24 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of parttime general attendants .

W25 07-02-06 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 aboutAppointment of temporary employees in subordinate cadre.

For the Respondent/Management :-

Ex. No. Date

Description

M1 17-11-87 Хегоx 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 Хегох copy of the settlement .

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

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 Хегоx copy of the order in O.P. No. 2787/97 ofHigh 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 .

6961

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

[ भाग II-खण्ड 3 ( ii) ]

नई दिल्ली , 21 अगस्त, 2007

Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 15/99 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 transferredto this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 14/2004.

का.आ. 2609.-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 14/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/326/1998- आईआर ( बी-I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 21st August , 2007

"Whether the demand of the workman Shri R. Vasudevan, wait list No. 228 for restoring the waitlist of temporary messenger in the establishment ofState Bank of India and consequential appointment thereupon as temporary messenger is justified? If so, to what relief the said workman is entitled?"

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

S.O. 2609. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 14/ 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 21-8-2007.

[No. L- 12012/326/1998 -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. 14/2004

[Principal Labour Court CGID No. 15/99 ]

(Inthe matter of the dispute for adjudcation 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 R. Vasudevan

I Party/Petitioner

AND

TheAssistant General Manager , : II Party /Management StateBank of India , Zonal Office , Coimbatore.

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 Tiruppur Main branch from 17-9-84. 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 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 Trippur 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 17-9-84 , the Petitioner has been working as a temporary messenger and some time performingwork in other branches also . While working as such 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 at , Thennamplayam 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 officefrom 1-4-97 . Hence , the Petitioner raised a 1. The Central Government Ministry of Labour , vide OrderNo. L- 12012/326/98 -IR (B - I) dated 01-02-1999 has referred this dispute earlier to the Tamil Nadu Principal

3677 G1/07-8 6962

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SFC. 3( ii)] 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 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 ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent /Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudicacion 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, retrenchrnent 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 luis 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 for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 228 in waitlist of Zonal Office , Combatoare . So far 211 wait listed temporary candidates , out of 705 waitlisted temporary employees wcre 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 ог 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 perinanent 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 , outof705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 228 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 lis 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 say that documents 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 [ भाग II-खण्ड 3 ( ii) ]

permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . 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 appointnment 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 accordingto 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 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 :----

(i) "Whether the demand of the Petitioner in Wait List No. 228 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 ? "

6963

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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 inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of 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 perinanent 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 15 , 2007/BHADRA 24, 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.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 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 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 ofwhich is marked as Ex.W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex .W2 four types of waiting lists have to be prepared. But the Respondent/Bank has allegedto 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 . M1 , M3 and M4 respectively. But, whenMW1 has spoken about the settlements, he deposed thatsettlement 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 orderdated 23-7-99 in W.P.No. 7872 of 1991, which is marked asan 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 inClass IV category who were paid wages daily on mutual agreementbasis. In such circumstances, as rightly contended the Resporident 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 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. 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 waitlist 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 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 andMadurai 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 6965

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[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 is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.D.s 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 " tife 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 allthose 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 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.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 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 6966

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[PART II-SEC . 3( ii)]

conciliation proceedings under Section 18( 1) of the I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18(3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate Government may refer for adjudiration after exarnining 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 Respandent 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 .

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 implementedby 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 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 ar 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 af 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 todiscourage 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 ar 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

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

[भाग II-खण्ड 3( ii ) ]

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 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 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 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 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 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 personswere 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 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 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/ 6968

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[PART II-SEC. 3(ii) ]

wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts, 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 followingprinciple 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.

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 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 exigencies and they have not appointed against any regular vacancy and they have only appointed in leavė,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 .

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 , inCDJ 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 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 ."

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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 reinstatementor 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 Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner.

Point No. 2 :

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

21. Thus, the reference is answered accordingly .

K. JAYARAMAN , Presiding Officer Witnesses Examined :-

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service . Further , when they have not been questioned the five settlements entered into between the Respondent /Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further , their prayer before the labour authorities was onlyto restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned 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 R. Vasudevan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan

MW2 Sri S. Srinivasan

Documents Marked :-

Ex. No. Date

Description

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

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THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

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

W9 01-07-85 Хегоx copy of the service certificate issued by Tiruppur Branch .

W10 28-06-85 Xerox copy of the service certificate issued by Thennampalayam Branch.

W11 Nil Xerox copy of the service certificate issued by Tiruppur Branch .

W12 09-08-88 Xerox copy of the service certificate issued by Tiruppur Branch .

W13 11-08-88 Xerox copy of the service certificate issued by Thennampalayam Branch.

W14 Nil

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

W15 Nil

Xerox copy of the Vol . III of Reference book on Staff maters 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 .

W17 6-03-97 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

[PART II-SEC. 3( ii)]

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 .

Feb. 2005

W22

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

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 Хегоx copy of the settlement .

M2 16-7-88 Xerox copy of the settlement .

M3 27-10-88 Хегоx 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 of the minutes of conciliation proceedings .

M7 28-5-91 Хегоx 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 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 .

[भाग II-खण्ड 3 ( ii) ]

नई दिल्ली , 21 अगस्त, 2007

का.आ. 2610. 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 13/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था । [सं. एल-12012/325/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 21st August, 2007

S.O. 261.0. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 13/ 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 24-8-2007 .

[No. L- 12012/325/ 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. 13/2004

[Principal Labour Court CGID No. 14/99] (In the matter of the dispute for adjudcation 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

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Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 14/99 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. 13/2004 .

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

"Whether the demand of the workman Shri A. Palanisamy, wait list No. 325 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

Sri A. Palanisamy

AND

The Assistant General Manager, : II Party/Management State Bank of India , Zonal Office Coimbatore .

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram,

Authorised Representative .

For the Management : M/ s . K. S. Sundar ,

Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/325/98 - IR (B- I) dated 1-02-1999 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 Ammapettai branch from 1979. 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 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 above interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of Ammapettai 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 1979, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working as such 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 at Bhavani main branch, the Manager of the branch informed 6972

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

[PART II-SEC. 3( ii)] thePetitioner 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 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 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 togrant relief of regular employment in Respondent/ Bank with all attendant benefits .

employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987, 16-07-1988, 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 for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 268 in waitlist 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 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 268 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 thisTribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of 6973

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

[भाग II-खण्ड 3 (ii) ]

thereupon as temporary messenger is justified?"

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

Point No. 1 :

Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/casual labour . Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons, the Respondent prays to dismiss the claim with costs.

8. 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 toprotect the legal and constitutional rights of the workmen coneerned 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. 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.

9. On behalf of the Petitioner , it is contended that 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 tothe 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

these Petitioners were recruited as temporary employees inthe Respondent/ Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent /Bank to the effect that temporary employees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner ListNo. 325for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment 6974

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 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 on behalfof 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 ofwhich is marked as Ex . W8 . Further , the appointment of daily wage basis for regular messengerial johs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were 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 1 is unable to say as to when the wait list Ex.M10 was prepared , butit ismentioned 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 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 , 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 cornprises 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 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 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.

6975 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reférence 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 means 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 ernployment 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 .

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 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 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 , 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

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)]

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 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 goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject - matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reachedwith 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 rio 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.

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 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 settleinent 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 establishme 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 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 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

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

[भाग II-खण्ड 3 (ii) ]

the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead 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 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, 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 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 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 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 ;

3677 Gl/07-10 6978

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II SEC. 3(ii) ]

be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretchedto such an extent as to cover these employees. Since they are only daily wage employees and have no right to the posts, theirdisengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' 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 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 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 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 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

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 to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . " 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service . Further , when they have not been questioned the five settlements entered into between the Respondent /Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

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भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

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 subsequentdecisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . 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 Witnesses Examined :-

For the Petitioner WW1 Sri A. Palanisamy WW2 Sri V. S. Ekambaram Forthe Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan 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 for icplementauon ofEx. M1 .

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THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 Хегоx 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 instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work.

W9 08-12-83 Xerox copy of the letter service certificate issued by Ammapettai Branch .

W10 14-10-97 Xerox copy of the service certificate issued by Sithar Branch.

W11 31-12-95 Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W12 Nil Xerox copy ofthe 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 .

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

W17 26-03-97 Xerox copy of the letter advisting selection ofpart time Menial---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 for the month of February, 2005 wait list No. 395 of Madurai Circle .

[PART II SBC. 3 ( ii) ] 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 messinger staff.

W22 09-07-92 Xerox copy of the minutes of the 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 parttime general attendants .

W24 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W25 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

For theRespondent/Management :-

Ex . No. Date

Description

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

M2 16-7-88 Хегоx 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 Xerox copy of the settlement .

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 in SLP No. 3082/99 .

M10 Nil

Xerox copy ofthe wait list of Coimbatoare 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 , 21 अगस्त , 2007

का.आ. 2611.-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 12/2003 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था । [सं. एल -22012/233/2002- आईआर ( सीएम- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 21st August , 2007

S.O. 2611. -In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 12/ 2003) of the Central Govemment Industrial Tribunal- cum- Labour Court, Asansol as shown in the Annexure in the Industrial Dispute between the management of M/s . Eastern Coalfield Limited, and their workmen, received by the Central Government on 21-8-2007.

[No. L- 22012/233/2002- IR (CM - II)] AJAY KUMAR GAUR , Desk Officer

ANNEXURE

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

PRESENT

Sri Md . Sarfaraz Khan , Presiding Officer REFERENCE No. 12 OF 2003

PARTIES

Agent, Kunustoria Colliery of M /s . E.C.Ltd. , Methani, Burdwan .

Vis.

Asstt . General Secretary , Koyala Mazdoor Congress , Asansol , Burdwan .

REPRESENTATIVES

For the management : Sri P. K. Das, Advocate For the union (Workman) : Sri Rakesh Kumar , General Secretary, Koyala Mazdoor Congress , Asansol .

STATE : WEST BENGAL.

INDUSTRY : COAL Dated the 2-8-2007

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/ 233/2002- IR ( CM - II ) dated 9-6-2003 has been pleased to refer the following dispute for adjudication by this Tribunal .

6981

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SCHEDULE

"Whether the action of the Management of Kunustoria Colliery of M /s . E.C. Ltd. in dismissing Shri Kalidas Bouri from service w.e.f. 7-11-1998 is justified? Ifnot to what relief is the workman entitled?" Onhaving received the Order No. L-22012/233/2002- IR(CM - II ) dated 9-6-2003 of the above mentioned reference from the Govt. of India , Ministry of Labour, New Delhi for adjudication of the dispute , a reference Case No. 12 of2003 was registered on 21-7-2003 and accordingly an order to that effect was passed to issue notices through the registerd Post to the parties concerned directing them to appear in the court on the date fixed and to 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 Rakesh Kumar, General Secretary of the union appeared in the court to represent the management and the union respectively. The written statement on behalf of both the parties were filed in support of their respective claims .

2. In brief compass the case of the union as set forth in its written statement is that Kalidas Bouri , Electrician of Kunustoria Colliery was a permanent employee of the company having U.M. No. 243089. The main case of the union is that the workman concerned was charge sheeted by the management on 13-7-98 for his absence w.e.f. 19-3-98 . It is denied that the workman absented from duty without information. In fact he had requested for granting leave but he was not granted the leave . The workman had informed the management about his sickness and also about the sickness of his wife . After recovery from illness he reported to the management for allowing him to resume his duty but in spite of allowing him the management issued the charge sheet to the workman. He had replied the charges but even then the management appointed the enquiry officer for conducting the domestic enquiry . It is also the case of the union that the workman concerned requested tothe management for allowing him to resume his duty but his request was not cornsidered. He requested in writing on25-9-98 and explained the situation under which he could not attend the duty . The past record of Kalidas Bouri is quite good. The management has also not mentioned any thing about his past record . It is accepted by the management that they received the application dated 3-9-98 through which the workman requested to the management for granting the leave but his request was not considered.

3. The further case of the union is that the management violated the order of CIL and the directives of the Apex Courtby not issuing the second show - cause notice to the workman and as such the principles of natural justice has been denied to the delinquent employee . Besides this the punishment of dismissal is also challenged to be harsh and extreme kind of punishment which should not have been 6982

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[PART II -SEC. 3 ( ii)]

by the management on 13-7-98 for. his absence w.e.f. 19-3-98.

awardedto Kalidas Bouri for his absence . The punishment should be always proportionate to the nature of misconduct but in this case management awarded the punishment without considering the nature of the alleged offence . Kalidas Bouri is a young man aged between 35 to 40 years only and he belongs to scheduled cast community which is the weaker section of the society . The union has sought relief for his reinstatement in the service with full back wages.

8. It is also the admitted fact that the management had received the application dated 3-9-98 for sanction of leave on 11-9-98 by which he had requested the management for granting the leave but his request was not considered . It is further admitted fact that the workman concerned was absent from his duty w.e.f. 19-3-96 to 13-7-98 for which a domestic enquiry was held in which the workmanconcerned did not participate and ex - parte enquiry was conducted and accordingly the report was submitted to the disciplinary authority.

4. On the other hand the defence case of the management in brief as per its written statement is that the instant dispute as raised by the union over the terms of reference is entirely misconceived one as there is no illegality in dismissing the ex - workman from his service and accordingly the very reference is claimed to be bad in the eye of law .

9. It is also admitted fact that on the basis of enquiry proceedings along with its report the workman concerned was dismissed from his service w.e.f. 7-11-98 . It is further clear from the charge sheet that the workman concerned was charge sheeted for an unauthorized absence w.e.f. 19-3-98 and there is no charge of hahitual absenteeism against the delinquent employee.

10. It is the settled principles of law that the facts admitted need not be proved. Since these all facts are admitted one so I do not think proper to discuss the same indetail .

11. On perusal of the record it transpires that on 6-9-05 a hearing on the preliminary point was made . The validity and fairness of the enquiry proceeding was not challenged by the side of the union and accordingly the enquiry proceeding was held to be fair and valid and as such the date for final hearing of the dispute on merit was fixed which was taken up for final hearing on 27-7-06 and after concluding the hearing , the award was kept reserved fororder.

12. In view of the pleadings of the parties , facts , circumstance and other materials available on the record the following issues were framed on re -cast for just decision of the case:

(1) Is the reference in hand misconceived one and bad in the eye of law and beyond the scope of the Industrial Dispute Act , 1947 ?

5. The main defence case of the management is that Kalidas Bouri absented from his duty since 19-3-1998 and as such he was charge sheeted by the management on 13-7-1998 as per the provision of the standing order applicable to the establishment but as the workman concerned failed to submit any reply a domestic enquiry was held by an independent Enquiry Officer . The enquiry officer issued due notices of enquiry which was sent to the permanent address of the workman concerned but the same was returned back with the postal endorsement " Refused to accept" and as such the said enquiry was held ex-parte by the Enquiry Officer and the charge of misconduct was fully established in the report submitted by the enquiry officer as mentioned in the charge sheet . The disciplinary authority having been fully satisfied by the enquiry report dismissed the delinquent employee from his service . The punishment ofdismissal is accordingly claimed to be proper and justified . It is denied that the workman was sick or had ever informed the management about his alleged sickness and sickness of his wife . It is denied that the management ever violated the order of the CIM and verdict of theApex Court in awarding punishment to the workman . It is also denied that the punishment of dismissal is harsh or extreme and the same is not proportionate with the nature of the offence. In view of the aforesaid facts of the pleadings the management has prayed to declare the punishment of dismissal justified and proper and the union is not entitled to seek any relief as prayed for .

(2) Is the charge of a misconduct of unauthorized absence as per the provision of model standing order against the delinquent workman is proved against him or not ?

(3) Is the punishment of dismissal awarded to the workman concerned just, legal and proportionate to the gravity of misconduct ?

6. In view of the pleadings of both the parties and the materials available on the record I find certain facts which are admitted one . So before entering into the discussion of the merit of the case I would like to mention those facts which are directly or indirectly admitted by the parties.

7. It is the admitted fact that the delinquent employee Sh. Kalidas Bouri was the permanent employee of the company working as Electrician at Kunustoria Colliery of M/ s. Eastern Coalfields Limited who was charge sheeted

13. Issue No. 1 : This issue has been taken up first for discussion for the convenience and just decision of the case. The management has taken the plea in para 1 & 2 written statement that the instant reference is bad in the eye of law and the facts as well the circumstance of the case is misconceived one and also bad in the eye of law . Butthe aforesaid facts have not been happily pleaded in 6983

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[ भाग II-खण्ड 3 (ii) ]

workman concerned was unauthorisedly absent from his duty during the relevant period . The workman in his application dated 25-9-98 has clearly accepted that he could not send any information to the management on 9th September, 1998. He has further admitted that 3 enquiry dates were fixed for hearing but he could not attend the enquiry dates . The union has not filed any chit of paper to show that the workman concerned was absent during the felevant period due to his sickness . Besides this the application for the sanction of the leave on the ground of illness of his wife was also not accepted and he was also intimated in this regard .

the written statement not it has been mentioned to show as to how far the reference is bad in the eye of law and the same is not legally maintainable . Apart from this it is obvious from the record itself that the aforesaid issue was neither raised nor pressed by the management even during the course of final hearing of the reference . The management has neither examined any oral witness nor tendered even a chit of paper nor any law points placed before the court in support of the plea . As such I do not find any legal defect in the maintainability of the reference and the facts of the case very well come under the purview of the Industrial Disputes Act , 1947. The Govt . of India through the Ministry of Labour has rightly referred the dispute to this Tribunal for adjudication and as such this issue is decided against the management.

15. Having gone through the entire prevailing facts , circumstance, enquiry proceedings and the findings of the enquiry officer I find that the delinquent employee was admittedly guilty for the charges leveled against him and the enquiry officer has rightly held him guilty for the misconduct of an unauthorized absence for about for four months continuously without any sanction leave, prior permission or information to the management for which the workman concerned deserves some suitable punishment for the alleged proven misconduct as provided in the model standing order . As such this issue is decided against the union .

16. Issue No. 3 : Now the only rnain point in issue for consideration before the court is to see as to how far the punishment awarded to the delinquent ermployee by the management is just , proper and proportionate to the alleged proven nature of misconduct .

17. It was argued by the side of the union that it is a simple case of unauthorized absence for about four rnonths and the absence from duty during the relevant period is duly explained and the reasons of absence from the duty is sickness which is relevant and satisfactory ground of absence during the relevant period .

18. It was further submitted that the workman concerned has got unblemish record during the service tenure and at best it is the first offence of the workman concerned which has been sufficiently explained and the same go to show the compelling circumstance beyond the control of the workman concerned . It was also argued that a simple case of unauthorized absence can not be said to be a gross misconduct and the extrerne sorts of penalty can't be imposed upon the workman in such a minor case ofalleged misconduct.

14. Issue No. 2 : This is an important issue and the crux of the reference in hand which may decide finally the fate of the case . From the perusal of the record it transpires that the workman concerned Sri Kalidas Bouri had absented himself from his duty w.e.f. 19-3-1998 for which he was charge sheeted by the managernent vide Ref. No. ECL/ KITT/PER/CST/2479 dated 13-7-1998 as per the provision ofmodel standing order under clause 17(1.) n . It is clear from the record that the delinquent employee did not appear before the enquiry officer and did not participate in the enquiry proceeding . The union has no where whispered even a word in its pleading about the issue of the notices by the enquiry officer at his home address which as mentioned has clearly pleaded in para 4 of its pleadings that enquiry officer had issued due notice of enquiry which was sent at the permanent address of the workman concerned but the same was returned back with the postal endorsement "Refused to accept" and as such the said enquiry was held ex -parte by the enquiry officer and the charge of the alleged misconduct was claimed to be fully established. Notices of enquiry dated 28-8-98 and 8-9-98 issued to the workman at his home address have been filed by the parties . There is no scope to deny the fact as the enquiry notices were issued or sent by the registered post and the same is returned back with an endorsement of "Refused to accept " will be deemed to served and same will be adrnitted to be legal service of the notice . It was the duty of the workman to send the information about his absence and the reasons for not attending and participating the enquiry proceedings . He could have easily sent his explanation to the charges leveled against him. There was no any scope before the enquiry officer except to proceed with the enquiry proceedings ex -parte . The managernent representative in the proceeding has supported the act of the absence of the workman from his duty w.e.f. 19-3-98 and accordingly he was held guilty by the enquiry officer in his report about the unauthorized absence without any sanction leave and information to the management . Besides this the union has also not challenged the fairness and validity of the enquiry proceeding and admitted that the

19. The management has also not charge sheeted the workman for habitual absence nor any chit of paper in this regard has been filed in the court nor there is any specific pleading in this respect as well . It was also submitted that the enquiry officer has also not mentioned that the reason of his absence was not satisfactory . The union submitted that the workman concerned was suffering fromjaundice which is serious type of disease and fatal for life . The medical prescription of the Sub - Divisional Hospital , 6984

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[PART II-SEC. 3 (ii) ]

to the alleged nature of misconduct proved . Such a simple case should have been dealt with leniently by the management specially when no second show cause notice has been served upon the concerned workman by the management which is a direct violation of the directives of the Apex Court which amounts to denial of principles of natural justice.

Asansol w.ef. 1-4-98 to 4-10-98 will bear out the truth that the doctor had advised him to take complete rest for six months and was declared fit to resume duty on 23-12-98 . In such a prevailing facts and circumstance one will have to be absent from his duty specially when the life itself is in danger. I find much force in the argument of the union side and I am convinced to hold that the workman concerned was absent from his duty during the relevant period under the compelling circumstance beyond his control .

23. In view of the matter I think it just and proper to modify and substitute the punishment by exercising the power under Section 11 (A) of Industrial Disputes Act , 1947 in order to meet the ends of justice . And as such the impugned order of dismissal of the delinquent employee is hereby set aside and he is directed to be reinstated with the continuity of service and in the light of the prevailing facts , circumstance and the misconduct for which the punishment of dismissal was imposed on the workman concerned , I think it appropriate that the concerned workman be imposed a punishment of stoppage of two increments without any cumulative effect. It is further directed that the workman concerned will be entitled to get only30% of the back wages which will serve the ends of justice. As such this issue is decided in favour of the union and against the management . Accordingly it is hereby

ORDERED

20. Perused the provisions of the certified standing order applicable to the establishment of the company where the extreme punishment prescribed is said to be dismissal as per the gravity of the misconduct and admittedly the misconduct of unauthorized absence from the duty under the compelling circumstance can not be said to be a gross misconduct rather it is a minor nature of misconduct. Besides this it has been several times clearly observed by the different Hon'ble High Courts and the Apex Court as well that before imposing a punishment of dismissal it is necessary for the disciplinary authority to consider the socio-economic back ground of the workman, his family back ground , length of service put in by the employee, his pastrecord and other surrounding circumstances including the nature of misconduct . These are the relevant factors which must have to be kept in mind by the authority at the time of imposing the punishment which of course has not beendone by the management in this case in order to meet the ends of justice .

21. that let an " Award" be and the same is passed on contest in favour of the workman concerned . Send the copies of the award to the Govt . of India, Ministry of Labour , New Delhi for information and needful . The reference is accordingly disposed of

Md . SARFARAZ KHAN , Presiding Officer

नई दिल्ली, 21 अगस्त, 2007

का.आ. 2612.-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 सरकार औद्योगिक अधिकरण, जबलपुर के पंचाट ( संदर्भ संख्या सीजीआईटी/एलसी/आर/ 106/98 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

21. The delinquent employee is admittedly an illiterate man of Bouri by caste who is the member of the Scheduled Caste and happens to be the member of the weaker section of the society . He is no doubt financially weak and poor who has suffered a lot for about eight years and he had never been gainfully employed any where during theperiod after dismissal . It is clearly provided under clause 27(1) (page 15 ) of the Model Standing Order that various minor punishment are to be awarded to the erring employee according to the nature and gravity of the misconduct . I fail to think as to why only maximum punishment available under the said clause should be awarded in the prevailing facts and circumstance of this case . It has also been observed by the Apex Court that justice must be tempered with mercy and that the delinquent employee should be givenan opportunity to reform himself and to be loyal and disciplinary employee of the management .

[सं. एल-40012/104/97- आईआर ( डी.यू. ) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 21st August, 2007

S.O. 2612. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central 22. However I am of the considered view that the punishment of dismissal for an unauthorized absence for about four months only under the compelling circumstance andwithout any malafide intention is not just proper and it is too harsh a punishment which is totally disproportionate 6985

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

[ भाग II-खण्ड 3 ( ii) ]

3. It is a no evidence case . Therefore the reference deserves to be decided in favour of the management and against the workman. 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 of this reference .

Government hereby publishes the award (Ref. No. CGIT/ LC/106/98 ) 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 Department of Post and their workman , which was received by the Central Government on 21-8-2007 .

[No. L-40012/104/97 - IR (DU)]

SURENDRA SINGH , Desk Officer

ANNEXURE

4. In view of the above , the reference is décided in favour of the management and against the workman holding that the action of the management of Sr. Supdt . of Post Offices, Hoshangabad in compulsorily retiring Sh. Tulsiram Chowdhari, Postal Asstt . , is legal & justified . Consequently the workman is not entitled to any relief. The parties shall bear their own costs of this reference .

C. M. SINGH , Presiding Officer

नई दिल्ली , 21 अगस्त, 2007 BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, JABALPUR

NO. CGIT/LC/R/ 106/98 .

Presiding Officer : Shri C.M. Singh

का.आ. 2613. 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 सरकार औद्योगिक अधिकरण/ श्रम न्यायालय जबलपुर के पंचाट ( संदर्भ संख्या सीजीआईटी/एलसी/ आर/ 136/02 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

....Union/workmen

S/o Shri Moodchan Chowdhari , Shri Tulsiram Chowdhari , Vill.Arkawali, Distt. Narsinghpur (MP) , Hoshangabad- 461001

Versus

[सं. एल-40012/ 77/2002- आईआर (डीयू) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 21st August , 2007 The Sr. Superintendent of Post Offices , Deptt. of Posts ,

....Management

Hoshangabad (MP) 461001

AWARD

Passed on this 3rd day of July, 2007

S.O. 2613. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the award (Ref. No. CGIT/ LC/R/136/02) of 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 Department of Post and their workman, which was received by the Central Government on21-8-2007 .

1. The Government of India, Ministry of Labour vide its Notification No. L -40012/104/97 - IR(DU) dated 13-5-98 has referred the following dispute for adjudication by this tribunal :-

[No. L -40012/77/2002 - IR (DU) ]

SURENDRA SINGH , Desk Officer

ANNEXURE

"Whether the action of the management ofSr. Supdt . ofPost Offices , Hoshangabad in compulsorily retiring Sh . Tulsiram Chowdhari , Postal Asstt . , is legal & justified? If not , what relief the workman is entitled to?"

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

NO. CGIT/LC/R/ 136/02

Presiding Officer : Shri C.M. Singh

Secretary,

.... Union/workmen

Akhil Bhartiya Akashwani Varg (GHA) Karamchari Sangh , (Branch) , Akashwani PATNA (BIHAR) -800001

2. Order dated 13-2-07 passed on the order sheet of this reference proceeding reveals that the reference proceeded ex -party against the workman Shri Tulsiram Chowdhari . The record of this reference reveals that no statement of claim has been filed on behalf of workman . Order dated 2-7-07 passed on the order sheet of this reference proceeding reveals that no written statement has been filed by the management . It further reveals that the management did not adduce any evidence .

3677 Gl /07-11 6986

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

New Delhi , the 21st August , 2007 The Supdt. of Post Offices , Head Post Office , Shahdol Division, Shahdol

....Management

AWARD

Passed on this 11th day of July, 2007

S.O. 2614. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. CGIT/ LC/R/64/98) 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 Department of Telecom . and their workman, which was received by the Central Government on 21-8-2007.

The Government of India, Ministry of Labour vide its Notification No. L-40012/ 77/ 2002 - IR( DU ) dated 26-9-2002 has referred the following dispute for adjudication by this tribunal :-

[No. L-40012/15/97 - IR (DU)] SURENDRA SINGH , Desk Officer ANNEXURE

"Whether the action ofthe Supdt . ofPost , Divison , Shahdol in dismissing the services of Sh. Amritlal Mishra as Branch Post Master (ED ), Post Office, Sapta , Distt. Shahdol is legal & justified ? If not , whatrelief the workman is entitled to ? "

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT, JABALPUR NO. CGIT/LC/R/64/98

Presiding Officer : Shri C. M. Singh

ShriBabulal , S/ o Shri Devisingh, Village & Post : Jawadia Bheel , Distt. Shahapur(MP) - 465001

Union/workmen 2.Order dated 13-2-07 passed on the order sheet of this reference proceeding reveals that the reference proceeded ex- party against the workman Shri Amritlal Mishra. The record of this reference reveals that no statement of claim has been filed on behalf of workman. Order dated 2-7-07 passed on the order sheet of this reference proceeding reveals that no written statement has been filed by the management . It further reveals that the management did not adduce any evidence.

Versus

Telecom District Engineer , Shajapur (MP) -465001

Management

AWARD

3. It is a no evidence case . Therefore , the reference deserves to be decided in favour of the management and against the workman . 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 of this reference,

Passed on this 29th day of June , 2007

1. The Government of India, Ministry of Labour vide itsNotificationNo. L-40012/15/97- IR(DU) dated 09/16-03-98 has referred the following dispute for adjudication by this tribunal:-

4. In view of the above , the reference is decided in favour of the management and against the workman holding that the action of the Supdt. of Post, Division Shahdol in dismissing the services of Sh . Amritlal Mishra as Branch PostMaster (ED), Post Office, Sapta, Distt.Shahdol is legal &justified . Consequently the workman is not entitled to any relief. The parties shall bear their own costs of this reference.

"Whether the action of management ofTelecom Distt. Engineer, Shajapur in terminating the services of Shri Babulal S/o Devisingh w.e.f. 28-02-1990 is legal and justified ? If not, to what relief the workman is entitled ?"

C. M. SINGH, Presiding Officer नई दिल्ली, 21 अगस्त, 2007

का.आ. 2614. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार दूर संचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण, श्रम न्यायालय जबलपुर के पंचाट ( संदर्भ संख्या सीजीआईटी/एलसी/आर/ 64/98 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

[सं. एल -40012/15/97- आईआर (डी.यू. ) ] सुरेन्द्र सिंह, डेस्क अधिकारी

2.Vide order dated 26-6-07 passed on the order sheet ofthis reference proceeding, the case proceeded ex - parte against the workman /Union . The workman/ union failed to putin appearance and to file statement of claim. Therefore 29-6-07 was fixed for filing written statement of the management, if any. On this date Shri A.K. Shashi , Advocate, learned counsel for the management submitted that as the workman/union has not filed any statement of claim, therefore, the management has not to file any written statement and on his request the reference was closed for award.

6987 भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खण्ड 3 ( ii ) ]

Versus

Director,

Telecom Project (West MP),

1st Floor, A Block,

GTBComplex,

T.T. Nagar ,

3. It is a no evidence case . Therefore the reference deserves to be decided in favour of the management and against the workman/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 of this reference .

Management

Bhopal (MP) -462001

AWARD

Passed on this 29th day of June , 2007

1. The Government of India, Ministry of Labour vide its Notification No.L -40012/240/94- IR (DU) dated 26-02-96 has referred the following dispute for adjudication by this tribunal :-

4. In view of the above , the reference is decided in favour of the management and against the workman holding that the action of the management of Telecom Distt . Engineer , Shajapur in terminating the services of Shri Babulal S/o Devisingh w.e.f.28-2-90 is legal and justified. Consequently the workman is not entitled to any relief. The parties shall bear their own cost of this reference .

C. M. SINGH, Presiding Officer

नई दिल्ली, 21 अगस्त, 2007

"Whether the action of the management of Coaxial Cable Project and Department of Telecommunication through Divisional Engineer Coaxial Cable Project , Shankarnagar , Raipur MP in terminating the services of Shri Tejram Sahare S/ o Bakaram w.e.f. 31-12-90 is lawful and justified? If not , to what relief the workman is entitled to ?"

2.Vide order dated , 26-6-07 passed on the order sheet of this reference proceeding, the case proceeded ex -parte against the workman Shri Tejram Sahare.

का.आ. 2615.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14) की धारा 17 के अनुसरण में , केन्द्रीय सरकार दूरसंचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , श्रम न्यायालय जबलपुर के पंचाट ( संदर्भ संख्या सीजीआईटी/एलसी/आर/ 71/96 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

3.On the next date fixed in the reference proceeding i.e.on 29-6-07 nobody responded for the parties . The aforesaid date was fixed for filing written statement by the management, if any. No written statement has been filed bythe management . Under the circumstances this Tribunal was left with no option but to close the reference for award.

[सं. एल -40012/240/94-आईआर ( डी.यू. ) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 21st August , 2007

4. It is a no evidence case . Therefore the reference deserves to be decided in favour of the management and against the workman/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 of this reference.

S.O. 2615. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. CGIT/ LC/R/71 /96) of the Central Government Industrial Tribunal-- Cum-Labour Court , Jabalpuras shown in the Annexure in the Industrial Dispute between the employers in relation in the management of Department of telecom and their workman , which was received by the Central Government on 21-8-2007 .

[No. L -40012/240/94- IR(DU) ]

SURENDRA SINGH , Desk Officer

5. In view of the above , the reference is decided in favour ofthe management and against the workman holding that the action of the management of Coaxial Cable Project and Department of Telecommunication through Divisional Engineer Coaxial Cable Project , Shankarnagar, Raipur MP in terminating the services of Shri Tejram Sahare S /o Bakaram w.e.f. 31-12-90 is lawful and justified. Consequently the workman is not entitled to any relief. The parties shall bear their own costs of this reference .

ANNEXURE

C. M. SINGH, Presiding Officer

नई दिल्ली, 21 अगस्त, 2007

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

NO . CGIT/LC/R/71 /96

Presiding Officer : Shri C. M. Singh

Shri Tejram Sahare ,

S/oBakaram,

का.आ. 2616. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार ऑर्डनेन्स फैक्ट्री बोर्ड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय जबलपुर के पंचाट ( संदर्भ संख्या सीजीआईटी/एलसी/आर/ 98/05 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

R/o Gangu Sahu , Taj Chowk,

Telibandh ,

Union /workmen

[सं. एल-14011/3/96- आईआर ( डी.यू. ) ] सुरेन्द्र सिंह , डेस्क अधिकारी Raipur(CG) -492006 6988

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)] New Delhi , the 21st August, 2007

against the workmen/union . The workmen/union failed to put in appearance and to file their statement of claim . Therefore 29-6-07 was fixed for filing written statement of the management, if any. On this date Shri A.K. Shashi , Advocate, learned counsel for the management submitted that as the workmen/ union has not filed their statement of claim, therefore, the management has not to file any written statement and on his request the reference was closed for award.

S.O. 2616. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. CGIT/ LC/R/98/05 ) of the Central Government Industrial Tribunal- Cum-Labour Court , Jabalpur as shown in the Annexure in the Industrial Dispute between employers in relation to the management of Ordnance Factory Board and their workman , which was received by the Central Government on 21-8-2007 .

[No. L- 14011/3/96- IR(DU)] SURENDRA SINGH , Desk Officer

ANNEXURE

3. It is a no evidence case . Therefore the reference deserves to be decided in favour of the 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 of this reference.

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

NO . CGIT/LC/R/ 98/05 Presiding Officer : Shri C. M. Singh

The General Secretary, All India Ordnance Factory Para Medical Staff Association, Through General Secretary , Vehicle Factory Hospital, Jabalpur- 482001

....Union/workmen

Versus

The Chairman,

4. In view of the above , the reference is decided in favour of the management and against the workmen/union holding that the action of the management of Chairman , Ordnance Factory Board , Kolkata in withdrawing the night duty allowance of the Para Medical Staff in various Ordnance Factories , is correct and not starting Cadre review or Gradation of those Para Medical Staff is correct, and fixation of pay scales of Pharmacist, Medical Assistant etc. etc. as per recommendations of the Fourth Pay Commission , as accepted by the Government of India, was correct. Consequently the Para Medical Staff working in various Ordnance Factory are not entitled to any relief. The parties shall bear their own cost of this reference .

Ordnance Factory Board , Kolkata- 700001.

C.M. SINGH, Presiding Officer and

नई दिल्ली , 21 अगस्त, 2007

का.आ. 2617. औद्योगिक विवाद अधिनियम , 1947 (1947 The General Manager , Vehicle Factory, Jabalpur - 482001

.Management

AWARD

Passed on this 29th day of June , 2007

का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार डायरेक्टर , सेन्सस ऑपरेशन के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में औद्योगिक अधिकरण/ श्रम न्यायालय , कोटा के पंचाट ( संदर्भ संख्या ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

1. The Government of India , Ministry of Labour vide its Notification No.I.- 14011 /3 / 1996- IR (DU) dated 12-09-2005 has referred the following dispute for adjudication by this tribunal:

[सं. एल-42012/67/98- आईआर ( डीयू) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 21st August , 2007

S.O. 2617. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the award (Ref . No. ) the Industrial Tribunal -Cum - Labour Court , Kota as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Director , CensusOperation and their workman , which was received by the Central Government on 21-8-2007.

"Whether the action of the management ofChairman , Ordnance Factory Board, Kolkata in withdrawing the night duty allowance of the Para Medical Staff in various Ordnance Factories , is correct and whether not starting Cadre Review or Gradation of those Para Medical Staff is correct , and whether fixation of pay scales of Pharmacist , Medical Assistant etc. etc. as per recommendations of the Fourth Pay Commission , asaccepted by the Government of India , was correct? If not, to what relief the Para Medical Staff working in various Ordnance Factories are entitled to and from which date ? "

2.Vide order dated 26-6-07 passed on the order sheet ofthis reference proceeding , the case proceeded ex-parte

[No. L -42012/ 67/98 - IR (DU) ] SURENDRA SINGH, Desk Officer [ भाग II-खण्ड 3 (ii) ]

अनुबन्ध

न्यायाधीश , औद्योगिक न्यायाधिकरण/केन्द्रीय/कोटा/राज.

पीठासीन अधिकारी- श्री गोवर्धन बाढ़दार , आर. एच. जे. एस. निर्देश प्रकरण क्रमांक औ. न्या. केन्द्रीय/ 23/02 दिनांक स्थापित : 10-5-02

प्रसंग : भारत सरकार, श्रम मंत्रालय , नई दिल्ली के आदेश क्रमांक एल. - 42012/67/98 - आई आर ( डीयू) दिनांक 10-4-02 निर्देश/विवाद , अन्तर्गत धारा 10 ( 1 ) ( घ ) औद्योगिक विवाद अधिनियम , 1947

मध्य

कृष्णचन्द्र पुत्र श्री नन्दलाल शर्मा, 7- एल-52 महावीर नगर- III कोटा

6989

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

3. प्रार्थी श्रमिक कृष्णचन्द्र की ओर से कलेम स्टेटमेन्ट प्रस्तुत कर संक्षेप में यह अभिकथित किया गया है कि उसे अप्रार्थी नियोजक द्वारा रजिस्ट्रार जनगणना निदेशक भारत सरकार , नई दिल्लीं द्वारा जनगणना कार्य हेतु स्वीकृत पद कम्पलाईर के पद पर दि. 15-7-91 से 900/- रु. प्र.. माह वेतन पर नियुक्त किया था जो नियुक्ति मौखिक आदेश से की गयी थी। प्रार्थी ने 15-7-91 से 30-6-92 तक निरन्तर कार्य करते हुए 240 दिन से भी अधिक समय तक कार्य पूर्ण कर लिया था तथापि 30-6-92 को कार्योपरान्त से बिना अधिनियम की पालना किये सेवा से हटा दिया गया । इसके अतिरिक्त वरिष्ठता सूची का प्रकाशन नहीं किया गया व पुनः नियोजन का अवसर भी प्रदान नहीं किया गया जोकि अधिनियम की अपेक्षित धाराओं के विपरीत है। अतः उसे सेवा से हटाया जाना अनुचित घोषित करते हुए पिछले सम्पूर्ण वेतन व समस्त लाभों सहित सेवा में पुनस्थापित का अनुतोष प्रदान किया जावे।

--प्रार्थी श्रमिक

एवं

निदेशक, सेन्सस ऑपरेशन ( राज. ) 6 बी झालाना डूंगरी , जयपुर ।

--अप्रार्थी नियोजक

उपस्थित

प्रार्थी श्रमिक की ओर से प्रतिनिधि.-

4. अप्रार्थी नियोजक की ओर से उक्त क्लेम का जवाब प्रस्तुत करते हुए यही प्रतिवाद किया गया है कि अप्रार्थी नियोजक द्वारा जनगणना अधिनियम , 1948 की परिपालना में कार्य की आवश्यकता होने पर संविदा आधार पर व्यक्तियों को लगाया जाता है और कार्य समाप्ति के साथ ही ऐसे व्यक्तियों की सेवायें स्वतः ही समाप्त हो जाती हैं, इस कारण अधिनियम की पालना किये जाने की कोई आवश्यकता नहीं है और ना ही प्रार्थी किसी अनुतोष का अधिकारी है। कलेम निराधार होने से स्वयं निरस्त किये जाने की प्रार्थना की गयीहै।

श्री एस. एल. सोनगरा

श्रीसी. बी. सोरल

अप्रार्थी नियोजक की ओर से प्रतिनिधि.--

अधिनिर्णय दिनांक: 7-7-07

अधिनिर्णय

भारत सरकार , श्रम मंत्रालय , नई दिल्ली द्वारा अपने उक्त आदेश दिनांक 10-4-02 के जरिये निम्न निर्देश/विवाद , औद्योगिक विवाद औद्योगिक अधिनियम , 1947 ( जिसे तदुपरान्त " अधिनियम " से सम्बोधित किया जावेगा ) की धारा 10( 1 ) ( घ ) के अन्तर्गत इस न्यायाधिकरण को अधिनिर्णय सम्प्रेषित किया गया है : -- "Whether the action of the Census Department through Director of Census Operation Rajasthan , Jaipur in discontinuing the services of Sh . Krishan Chand S/o Sh . Nand Lal Sharma w.e.f. 30-6-92 is legal and justified? Ifnot, to what relief the workman is entitled and from what date ? "

2. भारत सरकार , श्रम मंत्रालय , नई दिल्ली द्वारा सम्प्रेषित निर्देश /विवाद प्राप्त होने पर पंजीबद्ध उपरान्त पक्षकारों को सूचना विधिवत रूप में जारी की गयी।

5. आज पत्रावली वास्ते पेश होने कायम मुकामान प्रार्थना-पत्र प्रार्थी पक्ष नियत थी क्योंकि पिछली पेशी अर्थात् 18-11-06 को प्रार्थी प्रतिनिधि के इस कथन पर कि प्रार्थी का दौरान विचारण स्वर्गवास हो गया है, प्रार्थना- पत्र पेश किये जाने का समय दिया जावे। किन्तु प्रार्थी पक्ष की ओर से किसी प्रकार का कोई प्रार्थना- पत्र बाबत कायम मुकामान प्रस्तुत नहीं गया है, ना कोई युक्तियुक्त कारण ही बतलाया गया है , अतः अब इस हेतु समय और दिया जाना न्यायोचित प्रतीत नहीं होता है।

बहस पक्षकारों की सुनी गयी, पत्रावली का ध्यानपूर्वक अवलोकन किया गया। स्वयं प्रार्थी श्रमिक प्रतिनिधि के कथनानुसार प्रार्थी श्रमिक कृष्णचन्द्र जिसने कि यह विवाद उठाया था , की दौरान विचारण मृत्यु हो चुकी है । इसके अतिरिक्त प्रार्थी श्रमिक की मृत्यु के उपरान्त अब. अभिलेख पर प्रार्थी श्रमिक की ओर से कोई कायम मुकामान भी अवधारित नहीं है , ऐसी स्थिति में प्रार्थी श्रमिक पक्ष द्वारा उठाया गया मामला किसी भी तरह साबित नहीं होता है और परिणामस्वरूप किसी अनुतोष का प्रश्न उत्पन्न नहीं होता है। परिणामतः भारत सरकार, श्रम मंत्रालय , नई दिल्ली द्वारा सम्प्रेषित निर्देश /विवाद को इसी प्रकार अधिनिर्णित कर उत्तरित किया जाता है ।

गोवर्धन बाढ़दार, न्यायाधीश 6990

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929 [ PART II-SEC . 3 ( ii ) ] नई दिल्ली , 21 अगस्त, 2007

The points run as hereunder :-

"Whether the action of the management ofMTNL innot granting temporary status/regularizing the services of Shri Subhash , Part Time workman was justified ? If not, to what relief the workman is entitled to. "

का.आ. 2618. औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार महानगर टेलीफोन निगम लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं.- II , नई दिल्ली के पंचाट ( संदर्भ संख्या 84/2003 तथा 14/2003 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

"Whether the action of the management ofChief General Manager of MTNL , New Delhi in terminating the services of Smt . Sushila , Ex . Part Time worker w.e.f. 21-07-1997 isjustified ? Ifnot, to what other relief the workman is entitled to and from which date . "

[सं. एल-40011 /56/2002- आई.आर (डी.यू. ), सं. एल -40012/ 192/2002 - आई.आर. (डी.यू. ) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 21st August, 2007

S.O. 2618. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 84/2003 & 14/2003 ) Central Government Industrial Tribunal -cum- Labour Court, No. II , New Delhi as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Mahanagar Telephone Nigam Ltd. and their workmen , which was received by the Central Government on 21-8-2007 .

[No. L-40011 /56/2002- IR (DU), No.L-40012/192/2002 - IR (DU) ] SURENDRA SINGH , Desk Officer

The workmen applicants have filed claim/statement. In the claim statement it has been stated that the claimants/ workmen above belong to lower strata of society . They hail from the category of Scheduled Caste Community. It is submitted that they, with a viewto seek an appropriate job, got themselves registered with the Employment Exchange , Delhi , prior to the year 1992 for appointment/employment as sweeper . Accordingly on the basis of requisition made by Mahanagar Telephone Nigam Limited ( MTNL for short) , Delhi their names were sponsored for employment by the Employment Exchange to the management/ respondents for consideration/ employment and in pursuance thereof, they were appointed as sweeper as casual worker by the management of the respondents on 23-10-1992 .

ANNEXURE

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

Presiding Officer : R. N. Rai . L.D. No. 84/2003 I.D. No. 14/2003

Present :

Sh..N . L. Bareja

-Ist Party

Smt . Leena Tuteja -2nd Party

Inthe Matter of:-

1. Shri Subhash Vaid alias Subhash , S/o . Late Sh . Jamman , R/o . 1/203, Khichripur, New Delhi- 110091 .

2. Smt . Sushila , W/ o . Sh . Rajesh Suneri , R/o . 6/218, Khichripur, New Delhi-110091

Versus

1. The Chief General Manager , Mahanagar Telephone Nigam Limited, (MTNL), Janpath , NewDelhi .

2. The General Manager , MTNL Limited, Maharana Pratap , I.S.B.T. , New Delhi .

AWARD

The Ministry of Labour by its letter No. L-40011/56/ 2002 - IR (DU) Central Government Dt . 07-05-2003 has referred the following point for adjudication.

TheMinistry of Labour by its letter No. L- 40012/192/ 2002- IR ( DU) Central Government Dt . 28-01-2003 has referred the following point for adjudication .

That the claimants/workmen initially performed their duties on regular basis with the management (MTNL) at ISBT Office of GM/North , as casual workers from 23-C2-1992 to December , 1993. Thereafter , after a break from January, 1994 to August , 1994 , they were again engaged in the same capacity i.e. as Sweeper, on casual basis w.e.f. Sept. , 1994 in the same office as mentioned hereinabove , and continued to perform their duties sincerely and with utmost dedication and devotion to the entire satisfaction of the supervisory staff of the respondents , wherein their attendance along with other casual workers was being marked by the Caretaker who was duly authorised by the management, till the year 1997. Thereafter , the services of some casual workers were terminated by oral orders , who being aggrieved were humbly advised to seek justice through due process of law . Meanwhile the claimants/ workmen herein were also being threatened by the appropriate authorities of the management of meeting the similar fate as that of the other casual workers , i.e . termination of their services . Though , the claimants herein continued toperform their duties, but apprehending similar treatment of termination of their services as that of the other casual workers, they as humbly advised also joined the other casual workers for seeking justice in regard to conferment of temporary status, and in pursuance thereof, regularisation in terms of the relevant policies , through due process of law, in view of the facts that during the period of their continuous service, they had neither been given any counseling nor had been given any warning whatsoever , at any point of time . Implying thereby that they have been performing their duties continuously without any break whatsoever, and that there has been no adverse report , against them , and as such , they ought to [ भाग II-खण्ड 3 (ii ) ]

6991

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have been considered for conferment of the temporary status and in pursuance thereof considered for regularization in the Group- D post , for which they were eligible as they had more than requisite service to their credit, interms of the scheme formulated by the management for grant of temporary status and regularization , which scheme had since been notified in the year 1989 and made effective w.e.f. 1-10-1989 . It may worth stating here that the said scheme contemplated that in the event of continuous service of 240 days (206 days in the case of the offices observing 5 days a week ) in a calendar year as casual worker , the employees become entitled for consideration for conferment of temporary status and thereafter for regularization .

Principal Bench, New Delhi for seeking justice by way of O.A. No. 1506/1997 , titled Smt . Sushila and Ors . , Vs. U.O.I. and Ors , praying therein for quashing the illegal termination of the 4 other applicants , whose services had been terminated and for directions to the respondents to reinstate the said 4 applicants , as also to consider their case alongwith the claimant herein for grant of temporary status and thereafter for regularization in accordance with the scheme formulated in the year 1989 made effective w.e.f. 1-10-1989, since the claimants herein and other applicants were fully satisfying the conditions of service for consideration for conferment of the temporary status as contemplated in the scheme, i.e. 240 days (206 days in case of the offices observing 5 days a week) .

Since the claimants had worked continuously without any break/adverse report for more than 206 days : in calendar years from the 1994 to 1996, as the office of GM (north), MTNL, New Delhi , where they performed their duties observed 5 days a week , they satisfied the requirements , not only of the said scheme for the grant of temporary status and thereafter , regularization , but also , in terms of the settled position of law laid down by the Hon'ble Apex Court and various High Courts in the country in this regard.

It is submitted that the respondents in response to the aforesaid OA, did not deny the contentions of the claimants in regard to their appointment as casual workers and engagement of fresh casual workers after the termination of the 3 other applicants mentioned in the array ofparties implying thereby that the facts were not disputed . However, after completion of the pleadings , the Hon'ble CAT vide order dated 16-12-1998 was pleased to dismiss the aforesaid OA on the technical ground of jurisdiction , as by then the MTNL being a society had not been notified by the Central Government for inclusion under Section 14(2) of the Administrative Tribunal Act , 1985, and gave liberty to the claimants and others to approach the appropriate forum vide order dated 16-12-1998 , further directing therein for returning the papers to the concerned counsel for the applicants therein , as is evident from the aforesaid orders dated 16-12-1998 . That in pursuance of the aforesaid orders passed by Instead of being considered for conferment of temporary status and thereafter for regularization in Group- Dposts , they were being theratened of termination of their services as had happened with number of other casual workers , whose services were terminated and that too by an oral order, despite the fact that the requirement of employing casual workers still existed, as after their termination , the management arbitrarily and capriciously employed fresh candidates namely S/Shri Dharmendra , Vinod, Sonu , Babu , Ajay, Shayam, Sikander , Jaipal , Naresh and Ms. Bobby and Bala and lot of other persons as casual workers from time to time , without even calling the casual workers whose services had been terminated .

Apprehending the action of the management being arbitrary and illegal in regard to appointment of the fresh persons as casual workers without giving an opportunity to the experienced persons who had worked as casual workers , the claimants herein also anticipated the same fate on the card for them . Accordingly they as humbly advised joined the other casual workers , whose services were terminated for seeking justice through due process of law.

the Hon'ble CAT , the claimants along with 4 others as humbly advised , approached the Hon'ble High Court of Delhi at New Delhi for indulgence by way of Civil Writ Petition No.714/99 , wherein the Hon'ble Court was pleased to issue notice to the respondents on 05-02-1999 . Consequent upon the completion of the pleadings , and after hearing the arguments advanced on behalf of the parties , the Hon'ble High Court was pleased to observe that the said writ petition involved disputed questions of facts, which are required to be settled by the Trial/Labour Court. Accordingly the Hon'ble High Court was pleased to allow the counsel for the petitioners therein, (claimants workmen herein and 4 others ) to withdraw the said writ petition with a liberty to pursue the remedy in accordance with law, and in pursuance thereof the aforesaid writ petition was dismissed as withdrawn vide order dated 22-2-2001 . However , in the said order Shri Subhash was continuing in service with the respondents , which facts were admitted by the counsel for the respondents , was directed to be allowed to continue in service , and that the parties were also given the liberty to raise their respective pleas before the appropriate forum as may be deemed necessary vide the aforesaid order .

That during the period of their service as mentioned herein above , they were not given any formal appointment orders , however they were being made payment on the basis of daily wages for which the claimants were made to affix their signatures on the register . The complete details of the attendance in respect of the claimants as also the payment (towards monthly salary) made to them from time to time are in the power and possession of the respondents . The claimants crave leave of this Hon'ble Tribunal cum Labour Court to call for the records of the same from the respondents.

That the claimants along with 3 others similarly situated persons namely Sh . Ashok, Sh . Amit and Sh . Anit Kumar as humbly advised , approached the Hon'ble CAT,

It ishumbly submitted that Sh . Subhash in pursuance of the aforesaid order is continuing in the service and is presently performing his duties under the overall control of Chaudhary Sarup Singh , Caretaker, in the office of GM (North) as also is the Secretary General of the Staff Union . However , the claimant is presently performing his duties in 6992

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929 [PART II-SEC. 3 ( ii ) ] the Union Office , situated at A-28 , Atul Grover Road , which isdesignated as MTNL Staff Union Office and that he is being made payment towards the monthly salary from the office of the MTNL .

beenworking continuously with the management without any break whatsoever , for a considerable length of time, is unjustified being arbitrary illegal, discriminatory , malafide and is in contravention of the provisions contemplated in the Industrial Dispute Act , 1947 apart from being violative ofhis fundamental rights as guaranteed under Article 14, 16 & 21 of the Constitution of India .

Furthermore , prior to filing of the case in the court , the claimants were being paid Rs1,600/ - per month up to the year 1994, and thereafter , Rs1,500/- per month up to the year 1997. Whereas after filing the case in the year 1997, Sh . Subhash isbeing paid only Rs1,300/- as is evident from the letter dated 15-09-2001 , and that too without allowing him to affix his signatures . It may be stated here that the claimant is neither being made payment at the regular scale , nor has he been conferred with the temporary status or for that matter considered for regularization , as per the information available to the claimant herein .

Further more, the action is also in violation of the provisions of the scheme for conferment of temporary status and regularization formulated in the year 1989, pursuant to the directions passed by the Hon'ble Apex Court , for which. the claimants were and are fully eligible as they had satisfied the conditions set out therein , as also in violation of the agreement with the Federations arrived at on 16-11-1998 as confirmed in letter dated 03-02-1999 . it may not be out of place to mention here that it is a settled proposition of law laid down by the Non'ble Apex Court as well as various High Courts in the country that an adkoc or temporary or casual employee should not be replaced by another adhoc or temporary employee, but be replaced only by a regular employee and that , the persons already working are required to be given preference over the fresh employees in the event of requirement of appointing temporary/casual workers for further periods . Which precisely is the case of the claimants herein who , having worked for fairly long spell , ought to have been considered for grant of temporary status and thereafter for regularization in the Group-D postin accordance with either the scheme made effective in1989 or in the altemative , in terms of the agreement arrived with the Federations on 16-11-1998 as stated in the letter dated 03-02-1999:

Thatdespite the fact that after filing of the aforesaid writ petition , the respondents in response to the letter issued by Sh. Sarup Singh , the General Secretary of the MTNL Staff Union had confirmed vide letter No.MTNL/ IRW/ 21 ( 12) /VVII/ 12 dated 03-02-1999 signed by Sh.M.L. Malik, Officer on Special Duty that in terms of the agreement with the four Federations on 16-11-1998, the existing casual laboures will be absorbed in MTNL on as is where is basis . Instructions were issued to both the CGMs to regularize Casual labourers /DRMs/Temporary Status Mazdoors within a period of 15 days, and that a feed back on the same will be obtained shortly. The claimant is constrained with a heavy heart to bring to the kind notice of the Hon'ble Tribunal/Labour Court that despite the fact that he had been performing his duties continuously without any break whatsoever , and that he is being paid regularly by the management, he has not been absorbed in MTNL on " as is where is basis " as contemplated inthe letter dated 03-02-1999 .

That accrordingly , consequent upon the aforesaid order dated 22-02-2001 , passed by the Hon'ble High Court , and in view of the letter dated 03-02-1999 , issued by the respondents , the workmen raised an industrial dispute , by filing a statement of claim before the RLC (C) , New Delhi by way of detailed representation duly receipted on 06-07-2001.

Thatthe claimants have been and are being deprived of their rights , not only for consideration for grant of temporary status/ regularization , but also for preference , over the persons junior to them in terms of the appointment as casual workers for absorption in MTNL in terms of the agreement dated 16-11-1998 as stated in letter dated 03-02-1999 . It is humbly submitted that the claim of the claimants for regulrization in terms of the policy formulated 1989 or for matter for absorption in terms of the agreement signed with the Federations on 16-11-1998 , as communicated to the Secretary General vide letter dated 03-02-1999, is justified being lawful and genuine and as such , the case of the claimants deserve indulgence of this Hon'ble Tribunal/ Court to meet the ends ofjustice .

Keeping in view the facts circumstances of the case of the claimant and the submissions made herein above , it is, therefore , most respectfully prayed that this Hon'ble Tribunal cum Labour Court may graciously be pleased to : - That however , despite concerted efforts , the said dispute could not be settled amicably, even after due deliberations and indulgence of the ALC due to the adamant, high handed and malafide attitude of the management , as they refuted the claint and allegations made by the claimants. Whereupon, amittedly, the appropriate Government (Ministry of Labour ) , Govt. of India ,based on the receipt of FOC report from the office of the ALC( C), New Delhi has been pleased to refer the present dispute to this Hon'ble Tribunal cum Court for adjudicating the Industrial Dispute between the management and the workman herein .

(i) Call for the entire record of the case of the claimant pertaining to his appointment, attendance and payments made to him , etc. from the management and after perusal of the same: -

That the action of the management in neither conferring upon the claimant , the temporary status and thereafter, regularization in Group-D posts in accordance with the scheme formulated in the year 1989 , nor absorbing the claimants in MTNL in terms of the agreement arrived at with the Federations on 16-11-1998 as mentioned in the letter dated 03-02-1999 as also not paying them the regular payments as admissible to him , when Sh . Subhash has

(ii) Declare that the action of the management in not conferring the temporary status and in pursuance thereof not regularizing their services in Group- D post , in terms ofthe policy formulated in the year 1989 , made effective from 01-10-1989 , when they were fully covered by 6993

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[भाग II-खण्ड 3 (ii) ]

the said scheme, as is the settled position of law laid down by the Hon'ble Apex Court and various High Courts in the country , or in the alternative.

Exchange . The stand taken by the claimant is contrary to what had been taken by him in the writ petition No. 714 of 1999 filed by the claimant in the Hon'ble High Court ofDelhi atNew Delhi. It is specifically denied that Shri Subhash was appointed as sweeper by the MTNL on 23-10-1992. Sh . Subhash be directed to produce a letter of appointment .

(iii) Direct the management / MTNL to absorb the claimants in terms of the agreement arrived at with the Federations on 16-11-1998 , as confirmed in letter dated 03-02-1999 , with all consequential benefits to include full back wages and seniority vis- a- vis the other casual workers appointed after the appointment of the claimant in service of the management as also other benefits as are admissible to the similarly situated persons .

(iv) Any other or further relief, this Hon'ble Tribunal- cum- Labour Court deems fit and proper , may also be passed in favour of the claimant and against the management .

It isspecifically denied that the claimants were initially performing their duties on regular basis with MTNL from 23-10-1992 to December, 1993 at the ISBT Office of General: Manager (North) and thereafter were again engaged in the same capacity w.e.f. September , 1994. It is specifically denied that they were working as alleged with utmost dedication and devotion till the year 1997. It is denied that the service of some of the casual workers were terminated vide oral orders . It is further denied that they continued to workwith the answering management. It is submitted that there is no question of giving any counseling or any warning whatsoever , as the claimants were engaged as part time sweeper on daily basis subject to availability of work as such the statements made in para under reply are without any basis .

The management has filed written statement . In the written statement it has been stated that the present reference is misconceived and without any basis and there has been complete non - application of mind by the appropriate government as such the present reference is liable to be rejected on this sole ground.

It is specifically denied that the workman ought to have been considered for conferment of the temporary status and thereafter regularization in Group - D post . It is submitted that they were not covered by any scheme whatsoever as alleged in para under reply or otherwise . The answering management craves reference to the said scheme for its true purport , meaning and effect thereof .

It is specifically denied that any fresh candidates were appointed as alleged in para under reply or otherwise. It is denied that any vacancy existed.

That the present statement of claim is vague and without any basis as admittedly they have failed to place on record any document to establish that they were employed. It is submitted that there have been instances where MTNL has been engaging the services on daily wages and that too as a part time i.e. for hours daily, Safai Karamchari and for a limited period of time as such the statement of claim is liable to be rejected .

It is submitted that the claimants were employed on casual basis , there was no question of any appointment letter being issued . It is specifically denied that complete details of attendance etc. are available with MTNL .

That there is no legal subsisting right in favour of 'the claimants . They have failed to place on record to establish any of the statement made in the claim and as such also the present statement of claim is liable to be rejected and reference ought to be answered in negative.

Filing of the petition before the Hon'ble CAT is matter of record : The answering management craves a reference to the said petition and its reply for its true purport, meaning and effect thereof.

That the statement of claim is liable to be rejected since the same is based on forged and fabricated documents as they have annexed documents which alleged to have been issued by on Shri Sarup Singh, Caretaker in the office ofGeneral Manager (North - 1). It is submitted that the said Shri Sarup Singh has no authority to issue any documents which have been filed before this Hon'ble Tribunal .

It issubmitted that since the claimants were employed on casual basis, there was no question of any appointment letter being issued. It is specifically denied that complete details of attendance etc. are available with MTNL. It is submitted that onus is on them to prove their case.

It is pertinent to mention herein that the said Shri Subhash in the application filed before the conciliation officer had filed a photocopy of the Identity Card alleged to have been issued which was a forged and fabricated document, as after verifying the record it was found that the Identity Card No. 15232 which was claimed to be that of Shri Subhash was as per the records of the answering management issued to one Shri Narain Singh . It is submitted that said Shri Subhash is not working with the answering management . It is further submitted that the documents issued by Shri Sarup Singh have been issued without any authority and it seems that the said Shri Sarup Singh is an interested party as such no reliance can be placed on the said document .

Filingof the Civil Writ Petition No.714/99 in the Delhi High Court is matter of record . The orders passed therein are also matter of record . However , it is submitted that at the time of final disposal of the Writ Petition the counsel for Mr. Subhash had stated that Mr. Subhash was working withMTNL, accordingly the Hon'ble Court had directed that in case Mr. Subhash is working he will continue to work . It is submitted that after passing of the order and on making enquiries the answering management became aware of the fact that the said Sh . Subhash was not working where it was alleged that he was working , as such the directions given by the Hon'ble High Court was of no effect. It is specifically denied that Sh. Subhash is working with the answering management . It is submitted that the said Sh . Subhash has filed forged and fabricated documents which are alleged to have been issued by Shri Sarup Singh who has no authority whatever for issuing the said letters .

It is specifically denied that the services of Sh..Subhash were ever requistioned by MTNL through Employment Exchange . It is specifically denied that his name was sponsored for employment by the Employment

3677 Gl /07-12 6994

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929 [PART II SEC. 3 (ii)] It is submitted that there was no question of dispute being resolved amicably before the conciliation officer. The reference being made by the appropriate government pursuant to the failure of the conciliation proceedings is matter of record .

Sushila , Amit and Shri Rajesh . The photocopy of attendance register is B 53 to B 71. From the attendance register also it is proved that the workmen have performed duties for more than 240 days at least in the year 1994 & 1995. The management has issued certificate regarding their working days . They have worked for more than240 days atleast in the 1994, 1995 & 1996.

It is submitted that the claimants had worked intermittently from time to subject to the availability and exigency of the work of MTNL... It is submitted that when the claimants were working they were working as a casual labour on part time basis for 4 hours a day, in any case they are not covered by any scheme whatsoever . It is submitted that the claimants were working as part time temporary casual worker and were working only for 4 hours a day and subject to availability of the work and were paid the wages as prevalent at the relevant time .

Itwas submitted from the side of the management that the certificate issued by Sh . Sarup Singh is not correct. He has no authority to issue certificate . He was not . authorized to issue certificate . Even in case the certificate issued by Sarup Singh is dis-believed the workmen have completed 240 days on the basis of the certificate issued bythe management and the attendance register . Thus , it is held that the workmen have worked for more than 240 days atleast in the year 1994, 1995 & 1996. This issue is decided accordingly.

ISSUE NO . 2

That the answering respondent craves a leave of this Hon'ble Court to amend its reply in the event the claimants add , alter, amend their statement of claim . It is submitted that in case any new facts come to light the answering management also seek leave to amend its aforesaid reply.

Itwas submitted from the side of the workmen that the management envolved the scheme of casual labourers (grant of temporary status) and regularization scheme in the year 1989. This scheme is applicable to the casual labourers employed by the MTNL.

In the circumstances it is most respectfully prayed that the present statement of claims of the claimants be dismissed with costs .

5. It has been provided in the scheme for conferment oftemporary status as under :-

I.D.Nos . 84/2003 and 14/2003 involve common dispute . These are connected cases and they can be adjudicated by common award. The grounds of both the cases mentioned above are the same . So both the above mentioned cases are taken up together .

(A) . Vacancies in the Group - D Cadres in various offices of the Department of Telecommunications would be exclusively filled by regularization of casual labourers and no outsiders would be appointed to the cadre except in the case of appointments on compassionate grounds , till the absorption of all existing casual labourers fulfilling the eligibility conditions including the educational qualifications prescribed in the relevant Recruitment Rules ;

The workmen applicants have filed rejoinder . In their rejoinder they have reiterated the averments of their claim statement and have 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.

However , rugular Group - D staff rendered surplus for any reason will have prior claim for absorption against existing/ future vacancies .

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

From perusal of the pleadings of the parties the following issues arise for adjudication:

In the case of illiterate Casual Labourers , the regularization will be considered only against those posts in respect of which illiteracy will not be an impediment in the performance ofduties .

1. Whether the workmen have completed 240 days as alleged ?

2. Whether the workmen are entitled to conferment of temporary status & absorption ?

They would be allowed age relaxation equivalent to the period for which they had worked continuously as casual labour for the purposes of the age - limits prescribed for appointment to the Group - D cadre , if required .

3. To what amount of back wages the workmen are

entitled ?

4. Relief if any ?

ISSUE NO . 1

Till regular Group D vacancies are available to absorb all the casual labourers to whom this scheme is applicable , the casual labourers would be conferred a Temporary Status .

It was submitted from the side of the workmen that the workmen completed 240 days work in the year 1994, 1995 and 1996. They should atleast have been given temporary status in view of the scheme of 1989.

It has been specifically mentioned in the scheme that all the casual labourers will be absorbed. They would be conferredtemporary status after 240 days of working . The management did not confer temporary status on these workmen . The services of these workmen have been terminated illegally.

Itwas submitted from the side of the workmen that they have continuously worked in the year 1994, 1995 and 1996. They have worked for 259 days in the year 1994 , 365 days in the year 1995, 283 days in the year 1996 and 91 days in the year 1997. So they have completed 240 days in the calendar year prior to the termination of their services . The workmen have filed certificate issued by the AGM (A) . This certificate is photocopy but it has not been denied bythe management . The management witness has admitted that these woekman were engaged as daily wagers and payment to them was made for the day they worked .

The workmen have filed attendance register . The attendance register contains the name of S/Shri Subhash ,

It was further submitted that there was agreement between the General Secretary , Staff Union and the management on 03-02-1999 . It was also decided that casual 6995

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[भाग II-खण्ड 3 ( ii ) ]

labourers will be absorbed in MTNL on " as is where is basis" but the management did not absorb the workmen despite the memorandum dated 03-02-1999 signed by Sh . M.L. Malik, Officer on Special Duty. The workmen should have been conferred the temporary status in view of the scheme and the memorandum referred to above .

The objects and reasons of ID Act , 1947 show that the respondent management should not be permitted to indulge in any unfair labour practice . The workmen should not be engaged for years and then they should be removed all of a sudden. There is provision of retrenchment compensation for his removal . Retrenchment compensation is for compensating him otherwise so that he can survive long interregnum of unemployment . In the instant case no retrenchment compensation has been paid.

It was further submitted that the workmen have worked for more than 240 days in the year 1994, 1995 & 1996. They have not been given one month's notice or pay in lieu there of and retrenchment compensation . Section 25 F of the ID Act , 1947 is attracted as they have worked continuously in the year 1994, 1995 & 1996 and have worked more than 240 days . The management has terminated their services illegally and arbitrarily without payment of retrenchment compensation . So there is no legal termination of their services for want of proper retrenchment compensation . The workmen deserve reinstatement.

It was submitted from the side of the management that the Hon'ble Apex Court in 2006 (4) Scale has put down a complete ban on regularization and reinstatement . The Hon'ble Apex Court has held that employment can only be made on the basis of procedure established in that behalf envisaged by the Constitution . Equality of opportunity is the hallmark and the Constitution enshrines affirmative action to ensure that unequals are not treated equals . So public employment should be in terms of constitutional scheme.

It was submitted from the side of the bank that reinstatement is not the only relief in all cases of illegal termination . Section 11 A of the ID Act, 1947 provides for payment of compensation also .

It was further submitted that the Constitution Bench Judgment has afforded a right according to which the Government is not precluded from making temporary appointments or engaging workers on daily wages .

It was submitted from the side of the workman that compensation is payable in cases where an undertaking has become sick or it has been closed or it is in economic loss . It has not been established that the MTNL is in economic loss and it is a sick Industry.

My attention was drawn by the Ld . Counsel of the workmento 2000 LLR 523 State of,UP and Rajender Singh . The Hon'ble Apex Court ordered for reinstatement with full back wages as the services of the daily wages cleaner who worked for 4 years was dispensed with without following the procedure for retrenchment. In the instant case also no retrenchment compensation has been paid .

The Hon'ble Apex Court has not declared the provisions of ID Act un - constitutional . The Government has got no license to make always appointment of daily wagers and to continue them for life time . Fixed term tenure appointments and temporary appointments cannot be the rule ofpublic employment. At the time of making temporary appointments Articles 14, 16, 21, 23, 226 & 309 are infringed. There is no constitutional mandate that the government is at liberty to go on giving fixed term appointments for the entire tenure of service of an employee .

It has been held in 1978 Lab IC 1668 that in case service of a wokkman is terminated illegally the normal rule is to reinstate him with full back wages .

My attention was further drawn to AIR 2002 SC 1313. The Hon'ble Supreme Court has held that daily wager evenif serving for a short period should be reinstated.

Itwas submitted from the side of the workmen that in the instant case Sections 25 F , G of the ID Act are attracted . In section 25 of the ID Act it has been provided that if a workmenhas performed 240 days work and if the work is of continuous and regular nature he should be given pay in lieu of notice and retrenchment compensation .

It has been held by the Hon'ble Apex Court that there is no cessation of service in case provisions of section 25F are not compiled . In the instant case no compensation has been paid to the workmen .

In case a workman has worked for 240 days in a year and the work is of continuous and regular nature he should be paid retrenchment compensation . In case retrenchment compensation is not paid section 25 F of the ID Act is attracted . There is no cessation of his services . He is deemed continued in service in the eye of law. In case there is breach of section 25 F the service is continued and reinstatement follows as a natural consequence.

No such Article of the Constitution has been pointed out under which the Government or Public Sector units can continue incessantly to give temporary and fixed term appointments again and again . Since fixed term appointments and temporary appointments are not governed by any constitutional scheme , such discrimination will amount to vicious discretion . The Government of Public Sector unit will go on resorting to the method of pick and choose policy and give temporary and adhoc appointments to their favorites and thus the principles of equality enshrined in the constitution will be princip given a go bye . Such is not the intent of the Hon'ble Apex Court. However, in this judgment the provisions of the ID Act governing the services of the workman have not been declared unconstitutional . Reinstatement is the remedy provided in the ID Act for breach of several provisions enumerated therein or for breach of service rules provided in various labour welfare legislations. Section 11 A of the ID Act stipulates that in case the Tribunal is satisfied that the order of discharge or dismissal was not justified, it may, by its award , set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions , if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstance of the case may require. According to this benigtu provision this Tribunal has the authority to set aside the order of discharge or dismisal and reinstate the workman on the teras and condrions as it thinks fit .

ID Act, 1947 has been enacted to safeguard the interest of the workmen belonging to poor segment of society . It appears that legislature wanted that such workmen should not be harassed unnecessarily so section 25 F, U, T and Clause 10 ofVth Schedule have been enacted.

6996

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/ BHADRA 24 , 1929

The Hon'ble Apex Court in 2006 (4) Scale has not annulled section 11 -A of the ID Act and the legislature has authorized this Tribunal to set aside dismissal or discharge onits consideration and direct reinstatement . The judment cited by the management is not applicable in the facts and circumstances of the case .

Athree Judges Bench of the Hon'ble Apex Court has held in 1993- II- LLJ that termination of services affectes the livelihood of not only of the employee but also ofthe dependents. So in case of illegal termination of service the workman should be reinstated.

So far as the argument of the management that the workmen were not selected through recruitment process and were not sponsored by the employment exchange in concerned the workmen have worked as daily wagers as has been admitted even by MW1 in his cross - examination , so selection through recruitment process or sponsoring from employment exchange are not material in view of the continuous service of the workmen in the year 1994, 1995 & 1996 and the scheme formulated in 1989. So far as the case of alleged forged Identity Card of Sh . Subhash is concerned , the management may initiate necessary proceedings.

Itbecomes quite obvious from perusal of the scheme 1989 that the management with a benign attitude formulated the scheme for conferment of temporary status and thereafter absorption . These workmen had already performed more than 240 days work in the year 1994, 1995 & 1996. So they should have been conferred temporary status in the 1st year of their completion of 240 days work i.e. in the year 1995 and thereafter they should have been absorbed as per their seniority, but the management has terminated their services illegally and arbitrarily . In view of the Scheme of 1989 and the memorandum of 03-02-1999 , the workmen deserve conferment of temporaty status in the year 1995 and thereafter absorption in view of the scheme of 1989 .

Termination of the services of the workmen is illegal inview of Section 25F of the ID Act, 1947 also . The workmen have been terminated illegally and arbitrarily without payment of one month's pay in lieu of notice and retrenchment compensation.

In(2006) 4 Scale (Uma Devi's Case), the Constitution Bench Judgement has held that ad hoc and dialy wagers should be replaced by properly recruited employees . In view of this judgement also removal of these workmen and taking fresh workmen is illegal . The work of sweeping and cleaning is a continuous nature of work. The management has taken ad hoc employees after removal of these workmen. The workmen are entitled to conferment of temporary status in the year 1995 and absorption in view of the scheme of 1989. This issue is decided accordingly.

ISSUE NO.3

Itwas submitted by the management that payment of full back wages is not the natural consequence of the order of discharge or dismissal being set aside . It has been held in (2003 ) 6 SCC 141 that it is incumbent upon the labour court to decide the quantum of back wages .

Ithas been further held in this case that payment of back wages having discretionary element involved it is to

[PART II-SEC. 3(ii) ]

= be dealt with the facts and circumstances of the case . No definite formula can be evolved .

Ithas been further held in this case that payment of backwages in its entirety is the statutory sanction . In (2003) 4 SCC 27 the Hon'ble Apex Court held that in view of delay in raising the dispute and initiating the proceedings back wages need not be allowed .

In 1978 Lab IC 1968 three Judges Bench of the Hon'ble Apex Court held that payment of full back wages is the normal rule . In case services have been illegally terminated either by dismissal or discharge or retrenchment, in such circumstance the workman is entitled to full back wages except to the extent he was gainfully employed during the enforced idleness . In the instant case the workman was always ready to work but he was not permitted on account of invalid act of the employer .

In 2005 IV AD SC 39-three Judges Bench of the Hon'ble Apex Court held that reinstatement with full back wages is justified.

No hard and fast rules can be laid for awarding back wages . It depends upon the facts and circumstances of the particular case . There is no straight jacket formula for awarding back wages . The workman have worked continuously for 3 years . They are not working in any establishment. They are manual workers . They mustbe doing some sort of work in order to sustain themselves and their family .

The workmen unnecessarily raised the dispute before the Hon'ble CAT and before the Hon'ble Delhi High Court, They have delayed their case . Their services were terminated in the year 1997 whereas they raised this dispute in this Tribunal/Court in the year 2003. In the facts and circumstances of the case the workmen are entitled to get 15% back wages . This issue is decided accordingly.

ISSUE NO . 4

It has been held while deciding the other issues that the workmen are entitled to conferment of termporary status in the year 1995 and thereafter absorption . They are entitled to 15% back wages only. The management should reinstate the workmen and confer temporary status from 1995 and pay them 15% back wages all along . This issue is decided accordingly.

The references are replied thus :-

The action of the management of MTNL in not granting temporary status/ regularizing the services of Shri Subhash , Part time workman is not justified . The management should reinstate the workman w.e.f. the date of his termination from the service along with 15% back wages and confer temporary status and absorb as per scheme within two months from the date of the publication ofthe award .

The action of the management of Chief General Manager of MTNL, New Delhi in terminating the services of Smt. Sushila, Ex . Part Time worker w.e.f. 21-07-1997 is not justified . The management should reinstate the workman w.e.f. 21-07-1997 along with 15 % backwages and confer temporary status and absorb as per scheme within two months from the date of the publication of the award.

The award is given accordingly.

Date : 16-8-07

R. N. RAI , Presiding Officer 6997 [भाग II खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

AWARD

नई दिल्ली, 21 अगस्त, 2007

The Government of India in the Ministry of Labour , in exercise of powers conferred by Clause (d) of sub - section (1) and sub - section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 (14 of 1947) have referred the following dispute for adjudication vide their Order No.1.-40012 /28/ 2002- IR (DU), dated 06-08-2002:

का.आ. 2619. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार दूरसंचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय, भुवनेश्वर के पंचाट ( संदर्भ संख्या 69/2002 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

[सं. एल-40012/28/2002- आईआर ( डी.यू.) ] सुरेन्द्र सिंह, डेस्क अधिकारी

New Delhi , the 21st August , 2007

"Whether the action of the Management of Bharat Sanchar Nigam Limited in relation to their Telegrapli Office , under S.D.O. , Parlakhemundi in terminating the services of Shri A. Appalanarsu with effect from 9-5-2001 instead of regularizing hint is legal and justified? If not, what relief the workman is entitled to?"

S.O. 2619. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the award (Ref. No. 69/2002) Central Government Industrial Tribunal - cum- Labour Court , Bhubaneswar as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Department of Telecom and their workman, which was received by the Central Government on21-08-2007.

[No. L-40012/28/2002- IR(DU) ] SURENDRA SINGH , Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT, BHUBANESWAR

PRESENT

Shri N.K.R. Mohapatra,

Presiding Officer, C.G.I.T. - cum-Labour Court, Bhubaneswar.

2. The shortly stated case of the workman is that he was initially engaged as a casual Mazdoor from 4-1-1990 to 20-4-1992 by the Telecom Officer of BSNLto assist in the laying of cables for Sitaram L.1 . (T) Telephone Exchange, Parlakhemundi . Thereafter he was engaged as an ED Agent substitute/Mail Carrier from 5-12-1994 to 6-6-1998 in the sub -post office at Parlakhemundi. When the office of D.T.O. (Department ofTelegraph Office) was opened on 4-12-1998 he was again engaged against a regular vacancy of a Grade- D post as a casual Mazdoor vide an ordei dated 30-11-2000 to sweep the office floors , clean the tables , public counters andto supply drinking water , and make delivery oftelegrams in the town but in practice he was exclusively used to deliver the telegrams . It is further alleged by the workman that while he was doing the above work of delivering telegram with utmost sincerity he was terminated abruptly on 9-5-2001 without considering his case for regularization against a Grade - D post even though he was doing the said work continuously since 4-12-1998 .

Industrial Dispute Case No. 69/2002

Date of Passing Award-3rd August , 2007 BETWEEN

1. The Management of the Chief General Manager Telecom, Orissa Circle , BSNL, Sanchar Bhawan , Bhubaneswar (Orissa ) - 751 022.

2. The Management of General Manager, Telecom District, BSNL, Berhampur- 760001.

3. The Management of S.D.O. , Telegraph , Parlakhemundi , Gaj apati - 761 200.

AND ... 1st Party-Managements:

Their Workman, Shri A. Appalanarsu, S/o. Shri Savaraya, At/Po . Sitapur , Gajapati -761200 ...2nd Party-workman.

APPEARANCE

... For the 1st Party-

Management

Shri S. Ray , D.E. (Admn . ) O/o . GMTD, Berhampur.

For Himself the

Shri A. Appalanarsu,

3.While denying the averments of the workman all the three O.P Managements in their joint written statement have contended that the alleged engagement of the workman in different capacities during 1990 το 9-5-2001 are totally false got up and stage managed and not within the knowledge of the Managements . In regards to the certificates (Ext . - 1 to 3) basing on which the workman has . built up his case it is further contended by the Management that these certificates having been issued by incompetent persons it carries no meaning at all . It is submitted further by the Managements that when one Subash Ch . Mohakud was , working as a regular Telegraph Messenger in the Paralakhemundi D.T.O. , the alleged claim of the workman that he was appointed against that post during 4-12-1998 to 9-5-2001 looks ridiculous and unbelievable for during the said period engagement of casual labour was strictly prohibited. As regards the claim of the workman for his regularization or illegal termination it is further contended that even if it is for -granted for a while that he was engaged, against the above post that itself will not entail him to claim. regularization by - passing the recruitment rules . Thusto put it in one word the Management have alleged that the

2nd Party-Workman .

6998

[PART II-SEC. 3(ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

workman has stage - managed the entire situation by collecting certificates from incompetent persons and creating other documents filed by him in an effort to get into service.

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

ISSUES

1. Whether the reference is maintainable ?

2. Whether the action of the Management, Bharat Sanchar Nigam Ltd. , in terminating the services of Shri A. Appalanarsu working under the SDO, Telegraph, Parlakhemundi with effect from 9-5-2001 is legal andjustified?

3. Whether the workman was entitled to be regularized?

4. If not , to what relief the workman is entitled to ?

5. Besides examining himself as the sole witness the workman has filed certain documents marked as Ext . -1 to 5. The Managements have also examined a sole common witness besides producing some registers and documents marked as Exts . -A to E (10 Nos.) .

FINDINGS

Issue No. 1

6. This issue is answered affirmatively as there is no evidence worth the name to take a different view.

Issue Nos . 2, 3 & 4

termination. Ext . - 2 shows that he was engaged as a substitute E.D. Agent against a leave vacancy from 5-12-1994 to 6-6-1998 and Ext . - 3 shows that he was engaged as a Daily Mazdoor from 4-12-1998 to 30-11-2000. Therefore, even if the authorities granting such certificates are considered competent to issue such certificates and these certificates are token to be the service certificates, these are of no use to establish the continuity of service of the workman uptill the alleged date of termination on 9-5-2001 for there is no mention in any of these certificates that he was engaged up till 9-5-2001 or till the previous day . The last certificate (Ext. -3) shows as if the workman was engaged as a daily Mazdoor during4-12-1998 to 30-11-2000 to sweep the office floor and other miscellaneous work including supply of drinking water . To prove that he was further engaged beyond 30-11-2000 he has produced a chart (Ext . -4) prepared by himself. Besides he has produced some Messengers Delivery report to prove that he was utilized as a Messenger to deliver telegram in the township of Parlakhemundi . The evidence of Management Witness shows that such type of Messenger Delivery receipts are never issued in the name of any person . The various telegrams are simply listed in the form for its delivery and theMessenger is to carry the list and got the signature of the party after its delivery. The evidence of the workman shows that during the relevant period one regular employee was in the Telephone Exchange while he was working as atemporaryMazdoor. According to him he used to deliver different telegrams to the parties as per the Messenger Delivery report marked Ext . -5 series . Most of these receipts carry the name of the workman with duty hours written atop ofsuch receipts . During cross examination he admits tohave written himself his name and duty hours in these documents rendering these documents unfit for consideration. It also gives an impression otherwise as if the workman was doing all the duties of a Messenger while the regular Messenger was simply sitting idle which cannot be believed . In these premises no reliance can be placed either on the self designed chart (Ext . -4) prepared bythe workman or on the documents marked Ext . - 5 series to say that he was engaged continuously uptill the alleged date of refusal of employment on 9-5-2001.

8. The record shows that during trial the workman insisted for production of several documents by the Management . The Managements having produced these documents have marked these as Ext . -Ato C/3 . But none of these documents contain the name of the workman to suggest his engagement as a delivery messenger . Therefore , the claim of the workman that he had worked continuously for 240 days by the time he was refused employment without retrenchment compensation falls to the ground . Further more as regards his claim that he was given engagement against a regular vacancy of Group- D post, his evidence shows that after his termination a regular employee was posted.

7. These issues being inter - linked , they are taken up together. Claiming regularization the workman has stated that he was in continuous employment since 1990 till he was refused employment on 9-5-2001 . In his evidence he claims that when Post & Telegraph Department was a composite establishment he had got his first engagement in 1990. To justify the same he has produced a certificate (Ext . - 1) granted by a Line Inspector of Telephone Exchange , Parlakhemundi and counter signed by the S.D.O. Telegraph to the effect that he had worked as a daily Mazdoor in the construction work of Telephone lines and cables from 4-1-1990 to 20-4-1992. The evidence of the Management Witness shows that the above two persons were not the appointing authority and therefore the certificate Ext . - 1 does not inspire confidence . Besides when the same has been issued belatedly in 1994 and it not being a service certificate , no court can act upon it. A comparison ofthe same with two other certificates marked as Ext . -2 and Ext . -3 one granted by Sub - Divisional Inspector ( Postal) and the other by T.M. Incharge, D.T.O. , Parlakhemundi shows that the same are also not service certificates . They are found to have been issued mostly to show that the performance of the workman was satisfactory during his engagement period. Besides the documents marked Ext . - 1 to 3 do not show that he was engaged continuously from 1990 till the alleged date of 6999

भारत का राजपत्र : सितम्बर 15, 2007/भाद्रं 24, 1929

[ भाग II-खण्ड 3( ii) ]

LIST OF EXHIBITS ON BEHALF OF THE 2ND PARTY-WORKMAN

Ext-1- Copy of the certificate granted to the workman by Ch. Sitaram, Line Inspector, dated 19-11-1994.

Ext-2-Copy ofthe certificate dated 19-11-1998 granted to theworkman by the S.D.E..

This on the other hand suggests that on the posting of a regular employee the services of the workman was terminated, his appointment being against a temporary vacancy on adhoc basis . Therefore , even otherwise the termination of the workman can not be viewed as a case of retrenchment attracting Section 25 -F of the Industrial Disputes Act accordingly it can not be said that the refusal of employment to workman on 9-5-2001 was bad under law.

Ext-3-Copy of the certificate dated 30-11-2000 granted to theworkman by the T.M. In - charge , D.T.O. , Parlakhemundi . Ext-4- Copy of the statement of the details of the engagement ofworkman.

Ext-5-Copies of the folios indicating details of the telegrams distributed by the workman .

LIST OF EXHIBITS ON BEHALF OF THE 1ST PARTY MANAGEMENT

Ext-A-Duty Chart Register from 4-12-1998 to 25-12-1999 . Ext-A/ l .-Duty Chart register from 1-1-2000 to 31-1-2001 . Ext-A/2.-Duty Chart register from 1-2-2002 to 31-1-2003 . Ext-B-Telegraph Messengers diary from 1998 to 2001 . Ext-C -Trip register for the year 1999. Ext-C/-Trip register from 10-11-1999 to 4-6-2000. Ext-C/2-Trip register from 5-6-2000 to 22-12-2000. Ext-C/3-Tripregister from 23-12-2000 to 25-9-2001 . Ext-D-Copies of the statement of expenditures . Ext- E-Copy of letter No. 25 , dated 24-12-2004 issued by Sh. L.K. Behera, D.E. (Telecom) (Admn .) , Berhampúr .

नई दिल्ली , 21 अगस्त, 2007

का.आ. 2620. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार मै. रिचर्डसन एण्ड क्रुड्डास ( 1972 ) लिमिटेड के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , नं. -2 , मुम्बई के पंचाट ( संदर्भ संख्या सीजीआईटी -2/ 103 ऑफ 99 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

[सं. एल -42012/226/98- आईआर(डी.यू. ) ]

सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi, the 21st Agusut, 2007 9. Now as regards the question of regularization of the workman it may be stated that under the law as stands today no person engaged on casual basis can have any right to claim regularization . The evidence of the workman shows that he was simply engaged at the first instance as a casual Mazdoor and thereafter against a temporary vacancy . The discussion made in the previous para shows that the workman himself has not been able to prove cogently that his above engagement was continuous . Rather his claim that he was engaged continuously year after year and the plea of the Management that the engagement of the workman at any point time was not within their knowledge are all found have been based on suppression of material facts . When the Management Witness claims in his evidence that the name of the workman finds place in a list of workers likely to be regularized , it itself gives an impression that the workman though not engaged continuously was engaged intermittently over a prolonged period . To this extent the respective stand taken by the parties in their pleadings suggest that neither party has approached the Tribunal in a clean hand. However when according to the Management Witness a list of 455 workers including the workman has already been prepared for their regularization it is held that the reference needs no further answer . As regards the non -implementation of the list so prepared it is contendedby the Management Witness that because of a writ filed before the Hon'ble Court by sorne left out workers , the Management is not able to act upon that list though prepared long since . But as there is nothing on record to show that the operation of the list has been stayed by the Hon'ble Court in the writ preferred by the so -called left out workers , it is perhaps desirable for the Management as a model employer to enforce the list at an early date preferably within two months time instead of keeping sealed the fate of the workman and others for an indefinite period.

10. Accordingly the reference is answered.

N.K.R. MOHAPATRA, Presiding Officer LIST OF WITNESSES EXAMINED ONBEHALF OF THE WORKMAN

Workman Witness No.1-A. Appala Narsu .

S.O. 2620. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Governrnent hereby publishes the award (Ref. No. CGIT - 2/ 103 of 99 ) Central Government Industrial Tribunal cum Labour Court , No.II , Mumbai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s . Richardon & Cruddas ( 1972) Ltd. and their workman, which was received by the Central Government on 21-08-2007 .

LIST OF WITNESSES EXAMINED ON BEHALF OF THE MANAGEMENT

Management Witness No.1-Padma Charan Nayak.

[No. L-42012/226/98 - IR(DU) ] SURENDRA SINGH , Desk Officer 7000

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24 , 1929 [PART II-SEC . 3 ( ii) ] ANNEXURE

BEFORETHE CENTRAL GOVERNMENT

INDUSTRIAL I RIBUNAL No. 2 MUMBAI

PRESENT

Shri A.A. LAD , Presiding Officer

3. First party is a Public Limited Company engaged in heavy engineering industry of Fabrication and doing other allied heavy engineering industry. It is functioning in that area for more than 30 Years and has more than 400 employees. It has also sister concerns at Byculla as well as at Chennai and Nagpur .

Reference No. CGIT- 2/103 of 1999

EMPLOYERS IN RELATION TO THE MANAGEMENT OF M/ S . RICHARDSON & CRUDDAS (1972 ) LIMITED

4. All the employees working with first party are the members of the union of which President is monitoring the activities of the Union . It is recognized union . Management is trying to break the union .

TheGeneralManager (IR), M/s. Richardson & Cruddas ( 1972) Limited, Mulund Works , LBS Marg , Mulund (W) Mumbai -400080 .

AND THEIR WORKMEN

The President ,

Association of Engineering Workers , 252, Janta Colony , Ramnarayan Narkar Marg , Ghatkopar (East) , Mumbai -400079

5. The workman concerned had proceeded to his native place on sanctioned leave . After he was to resume duty on 23-12-1993. However due to his own sickness and due to tension on account of death of his father and sickness of his mother, he could not resume on duty . When he went to resume on 01-12-1995 on duty he was not permitted to report saying his name was removed from the muster roll .According to second party Union before taking such action against the workman , no any provisions were followed by the first party of serving notice , issuing charge sheet , calling explanation about absenteeism and conducting enquiry. As action taken by first party was arbitrary , require to quash and set aside with direction to first party to take him in the employment .

APPEARANCES

For the Employer

Mr. S.Z.. Chowdhary, Advocate

For the Workmen : Mr. V. T. Mirajkar , Advocate

Mumbai , Dated 18th July, 2007

Ref. CGIT -2/103 of 1999

AWARD PART- II

1. Matrix ofthe facts as culled out form the reference are as under :--

6. This is objected by first party by filing written statementat Ex - 10 contending that , concerned workman remained absent without intimation and sanction of leave . He willfully remained absent and did not report on duty . Even he did not attend the enquiry which constrainged Inquiry Officer to proceed with the enquiry exparte and given findings . Since opportunity was given and it is not explained as to why second party workman abandoned the job , gave scope to the first party to presume concerned workman voluntarily abandoned the job and left it since not interested . So it is submitted that , demand of Union to take concerned workman in employment has no meaning and request to reject the reference.

The Government of India, Ministry of Labour by its Order No. L-42012/226 / 98 /IR ( DU) dated 16/20-4-1999 in exercise of the powers conferred by clause (d) of sub- section ( 1) and sub - section 2(A) of Section 10 of the Industrial Disputes Act. 1947 have referred the following disputeto this Tribunal for adjudication :

7. In view of above pleadings my learned Predecessor framed issues at Ex - 11 . Out of them issue Nos . 1& 2 were treated as preliminary issues and while passing Part - 1 award which is not challenged by anybody , this Tribunal observed enquiry not fair and proper and findings perverse . By passing orderdt. 29-12-2001 , my Predecessor also directed first party to justify its action . As a result of that , now following issues arises which are answered against it.

"Whether the action of the management of M/ s . Richardson & Cruddas ( 1972 )" Ltd. , Mulund Plant , Mumbai -400 080 in terminating the services of Shri Brij Bihari Rai is legal and justified ? If not,to what reliefthe workman is entitled ?"

Issues

Findings

3. Whether the action of the

No.

management in terminating the service ofBrij Bihari Rai is legal and justified ?

2. Claim statement is filed at Ex - 8 by the President of the Union making out case that, concerned workman joined first party as a Helper and worked for 16 years . He was dismissed on 01-12-1995. That time his salary was Rs. 2.700,- pin . He was active member of Union . His entire service record was clean and unblemished and he was very much punctual in his attendance during his employment .

4. If not , to what relief the workman isentitled ?

As per Order.

7001

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

[ भाग II-खण्ड 3 ( ii) ]

REASONS

Issues Nos 3 & 4:-

reported for duty on 1-12-1995 after two years without intimating first party about absenteeism and reason behind it. Even death certificates produced of parents were not communicated to first party at the relevant time to invite sympathy of the first party on its decision and regarding death of his parents to create soft corner . It is also matter of record that, he did not produce any evidence on death oftwin of his brother .

9. From all this it became matter of record that , concerned workman remained absent unauthorisedly from 23-12-1993 till 1-12-1995 that is about two years . It is also clear that, he was on sanctioned leave from 21-11-1993 to 22-12-1993 . It is also matter of record that concerned workman hail from Bihar and to reach Mumbai from Bihar it takes 36 hours journey . One has to consider all that coupled with his status , who was working as a Helper and who lost his parents which is not disputed . It is also matter of record that , whatever steps taken by first party about his absenteeism after sanctioned leave were not brought into the notice of concerned workman . It also revels that , no any single correspondence was served on concerned workman about the step taken by first party of framing charges , holding enquiry and taking decision of dismissal in the form of removing name from the muster- roll. All this reveals that , the steps which are taken by the first party of issuing charge sheet , holding an enquiry and taking findings from Inquiry Officer which was admittedly anex- parte, all were done in the absence of the concerned workman and without his knowledge . If at all he might have been served with notice regarding charge of unauthorised absenteeism , he would have good opportunity to communicate death of his parents . If we considered death extracts of the parents which are not disputed by first party and which are in original form, reveals that , his mother died on 31-3-1994 and his father on 6-10-1994 . That means both died within a gap of seven months and definitely such a death might have affected on the concerned workman and if he is affected , it is not abnormal and one has to consider it in that spirit . When he lost parents within gap of 7 months , definitely it might have affected on him and he might be not in a postion to communicate it to first party . That means , concerned workman was having good reason to remain absent beyond sanctioned leave and that is justified by two original death certificates of his parents . And other two papers produced with affidavit Ex - 37 without any supporting evidence reveals that , he was visiting doctor on 5-1-95 and 1-12-95 . We have to see whether there was reason for concerned. workman to remian absent and these papers produced with affidavit Ex-37 in some manner justifies his absenteeism though it was unauthorised . But decision taken by first party in initiating equiry without involving concerned workman and observing him guilty of unauthorised absenteeism is not at all supported by any reasons and it appears it is chosen evidence . It is not also case of the first party that , it tried to serve notice on concerned workman 8. In this round , first day was supposed to justify its action of termination which is taken on admitted position ofabsenteeism of second party from 23-12-1993 onwards till he reported on duty i.e. on 1-12-1995 . On that first party examined R.G. Satam at Ex -28 by filing an affidavit in lieu of examination - in- chief who narrated all story in what way second party proceeded on leave , what efforts were made to intimate second party about charge sheet and notice and how inquiry proceeded ex -parte . In the cross this witness admits that , concerned workman was on sanctioned leave from 24-11-1993 . It is also admitted that , the reason givenby concerned workman that he want to visit his native place. It is also matter of record that , he reported on duty on 1-12-1995 but was not accepted in the employment. It is suggested by the concerned workman that after his absenteeism from the sanctioned leave he lost his mother and then his father and was shocked by these deaths . He received mental shock of the death of parents and in that. twin of his brother at native place also expired . All this scenario of family tragedy did not permit him to report on duty mentally vis - a- vis as a social obligation . It is also matter of record that, no any correspondence was sent by concerned workman on that and explaining all those to first party. It is also matter of record that, steps taken by the first party about absenteeism of concerned workman regarding period after sanctioned leave , of issuing notice , sending charge- sheet, calling concerned workman to explain and conducting inquiry ex - parte is also not challenged. Beside that , second party had led evidence at Ex-37 in lieu of his examination in chief and filed original death certificate of his mother and father . He has also filed two prescriptions given by Dr. Sinha of 1995. In the cross he admits that, he was member of union when he was terminated . He also said that, his name was in pannel of representatives of the Union . However he did not participate in any discussions of union . He admits that, he cannot produce death certificate of twin of his brothers. He also stated that , he cannot produce case papers of his parents . He also admits that , his brother was at native place and looking after parents . He admits that, there is a joint family. He also admits that, his father was of 70 years old and mother was also of advanced age . He also admits that , he did not communicate first party to consider his stay at native palce on account of sickness of his parents . He admits that , he brought the case papers and certificate givenby Dr. Sinha while reporting on duty . All this reveals that, concerned workmandid not intimate about his sickness or about extension of his leave . Even he has not made any effort in keeping contact with first party . It is not his case that, address of his native place was on the record offirst party and first party was supposed to communicate any development at his residential address of his native place. It is also matter of record that, he straight - away

3677 GI/07-13 7002

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

by sending it to place and tried to intimate regarding enquiry by approaching him at native place . When all these things are not followed by thsee first party which is rather a well organised corporate body which is facilitated with all types of communication cannot sit upon its own judgment and take decision as taken in the instant case . So definitely treating unauthorised absenteeism of concerned workman of abandonment of job is not just and proper.

10. It is a matter of record that, concerned workman did not work for first party from 23-12-1993 to 01-12-1995. Then he raised dispute which is sent here for adjudication after submitting failure report by the competent authority , where he succeded in showing that , he was having reason to remain absent though it was not sanctioned by first party. But decision was taken by first party behind his back which is not just and proper. So I conclude that , first party must consider the claim of the concerned workman in its employment . Besides , age of the concernedworkman i.e. 49 years required to consider. This isnot age of retirement or sitting idle in house. Beside first party is functioning and discharging its activities as it was doing when concerned workman was removed from its muster roll . So all this leads me to conclude that, conecerned workman must be considered by first party as its employee from 01-12-1995 and take him in the employment within three months and go on paying his wages from the date of absorbing him in the employment . Concerned workman cannot claimback wages prior to period of his absorption , newly taken by the first party. Hence the order:

ORDER

1. Reference is partly allowed.

2. First partyto absorb second party workman Shri Brij Bihari Ramparas Rai as Helper on the post on which he was working in its muster roll , within three months from this order and go on paying his monthly salary for that post.

3. The prayer of the second party to give ancillary reliefs of back wages and continuity of service is rejected with no order as to cost .

Dated 18-07-2007

A.A. LAD, Presiding Officer नई दिल्ली, 21 अगस्त, 2007

का.आ. 2621.औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार दूरसंचार विभाग के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय , नं.2, मुम्बई के पंचाट ( संदर्भ संख्या सी जी आई टी-2/58ऑफ 2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

[सं. एल-40012/ 114/2000- आईआर (डी.यू. ) ] सुरेन्द्र सिंह, डेस्क अधिकारी

[PART II-SEC . 3 (ii) ] New Delhi , the 21st August , 2007

S.O. 2621. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the award (Ref. No. CGIT - 2/ 58 of2000 ) Central Government Industrial Tribunal -cum- Labour Court , No. II , Mumbai as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Department of Telecom and their workman, which was received by the Central Government on 21-08-2007 .

[No. L-40012/114/2000- IR(DU)] SURENDRA SINGH , Desk Officer ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO . 2, MUMBAI PRESENT A.A Lad, Presiding Officer

Reference No. CGIT -2/58 of2000

EMPLOYEARS IN RELATION TO THE MANAGEMENT OF BHARAT SANCHAR NIGAM LIMITED Telecom Factory

The ChiefGeneral Manager Bharat Sanchar Nigam Ltd.

Deonar

Mumbai-400088

AND

THEIR WORKMEN

The President

Rashtriya Telecom Employees ' & Workers' Union D-63 , Sarith Vishwakarma Nagar ,

Mulund(W), Mumbai -400080

APPEARANCES

ForThe Employer : Mr. B. M. Masurkar Advocate.

For The Workman : Mr. M. V. Palkar Advocate.

Mumbai , the 6th July , 2007 AWARD PART-II

The facts of the reference are as under :

1. The Government of India , Ministry of Labour, by itsorder No. L-40012/114/2000 [ IR (DU) ] dated 21-06-2000 in exercise of the powers conferred by clause ( d) of sub- section ( 1 ) and sub- section 2(A) of Section 10 of the Industrial Disputes Act , 1947 have referred the following dispute to this Tribunal for adjudication.

"Whether the action of the management of Bharat Sanchar Nigam Ltd. Mumbai in terminating the services of Shri R. R. Gawade is justified ? If not, to what relief the workman is entitled ? " 7003

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[भाग II-खण्ड 3( ii) ]

such relief was given to the concerned workman by asking him to retire compulsorily .

4. He committed serious offence like commission ofmisconduct which is of very serious nature . Said charge was levelled and proved against him . Though opportunity was given but he did not utilize it and did not participate in the inquiry. As decision to retire concerned workman , Gawade was taken after conducting enquiry , now said workman, Gawade cannot challege it as subject matter of 'compulsory retirement' does not fall with in the jurisdiction ofthis Tribunal . Reference is sent presuming that concerned workman is terminated . Actually said punishment of termination was reviewed by Appellate Authority and he was compulsorily retired instead of termination . In fact decision of the first party is ofcompulsory retirement ought to have been challenged by the concerned workman . Since the punishment of termination does not subsist , reference sent under that guise be rejected as Tribunal cannot travel beyound subject matter of 'termination ' and give verdict on compulsory retirement .

5. In view of above pleadings , my Learned Predecessor framed issues at Ex- 13 . In first round i.e. while passing Part -I award , issue of fairness of enquiry and perversity of findings alongwith preliminary objection raised ofdelay and latches while making reference are decided on 16-05-2006 holding enquiry not fair and proper and findings perverse. Inthe same order, first party was asked to prove the charges and justify its action of removal of concerned workman from the employment . As a result of that remaining following issues are now taken for consideration which are answered against each of them: -

Issues

Findings 2. By filing the Statement of Claim at Ex - 6, the 'concerned workman and General Secretary of the Rastriya Telecom Employees & workers Union , sumit that , enquirty conducted against concerned Workman i.e. R. R. Gawde was not conducted by following principles of natural justice. No opportunity was given to the concerned workman to attend the enquiry. His duties about 60 % were manual nature and 40% were clerical . He was appointed as Planner Grade- I Staff No. 104792. Then he was promoted and designated as a Planner Grade - I . Though he was designated as Planner - I , he was having no authority to appoint anybody or to remove anybody. He had no power to sanction anybody's leave and had no authority to initiate any disciplinary action against any of the workman . He had no authority to sign any Bank account on behalf ofthe firstparty and had no authority to withdraw the amount for first party. He was not Constituted Attorney of the first party.His principal duties were of technical and operational in nature and there was no even a stint of supervisory duties as far as his duties were concerned . He was working as per the instructions received by him from his superiors . False allegations were leveled against him . Farce of enquiry was made by the first party . Enquiry Officer was bias . At that particular time Apex Court treated first party not an 'Industry' . So employee did not attend inquiry . Later, Apex Court decided otherwise and observed first party is an 'Industry ' . The findings given by the inquiry officer are perverse . The punishment of ' compulsory retirement' of the concerned workman is nothing but terminating his employment at the age of 41 years as retirement age with the first party is upto 60 years . So it is submitted that , action taken by first party in retiring the concerned workman by order dated 15-03-2000 is nothing but terminating him from the employment and said require to set aside with the direction to reinstate him with benefits of back wages and continuity of services .

Yes

(iv) Whether the Rashtriya Telecom Employees and Workers Union has locus to represent Shri R. R. Gawde?

Yes

(v) Whether Shri R. R. Gawde was compulsory retired by way of punishment for misconduct ?

(vi ) Whether the action of the management of Bharat Sanchar Nigam Ltd. , Mumbai interminating the services of Shri R. R. Gawde under the guise ofcompulsory retirement is legal and proper?

Though legal but not proper

(vii) What relief the workman is entitled to ?

Asper order

below.

3. This prayer is disputed by the first party by filing reply at Ex - 8 stating and contending that , reference is not tenable as subject matter of the reference , compulsory retirement' does not fall within the purview of Section under which the Competent Authority sent the reference for adjudication . It was not the termination. It is contended that , subject matter of the refernce' compulsory retirement ' does not fall under the definition of Termination' . This Tribunal has no jurisdiction to give verdict on compulsory retirement . Besides this , it is contended that , charge sheet was served on concerned workman . Full opportunity was givento concerned workman Gawade to participate in the enquiry. Inquiry Officer was having foundation to give finding against the concerned workman . Even the punishment awarded by the Inquiry Officer of termination was reviewed by the Appellate Authority and leniency was shown . In the appeal , second party was permitted to retire by which he got all retirement benefits i.e. gratuity, pension , provident fund etc. If at all , he would have been terminated, he could not have got those benefits and as 7004

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

REASONS

Issue No : 4:

6. This issue is regarding status of the union who espouses the demand of the concerned workman to reinstate him alleging that , he was wrongly and illegally removed from the employment . This represntation of the union is challenged by first party saying that, said union has no locus standi to espouse the case of the concerned workman and on that count reference does not survive .

7. As far as this question is concerned , except pleading, no evidence is led by first party to show that this union has no locus standi to espouse the case of concerned workman . Even it is not argued by the first party though it submitted its written arguments at Ex-57. In the written arguments submitted at Ex-57 evidence led by the first party'switnesses are reproduced on the charges levelled against the second party and concentrated to show how its action was justifiable . As stated above except taking contentions in the written statement, nothing is stated by the first party about the status of the union and its disqualification . As per the provisions of Industrial Disputes Act, such dispute can be raised in the guise of any dispute or difference between employers and employers, between employers and workman , or between workman and workman which is connected with the employment or non -employment or the terms of employment orwith condition of labour or any person . As per Section 2k of Industrial Disputes Act, dispute of concerned workman regarding his removal definitely fall under category of dispute about his employment and such a dispute can be raised or espoused by such individual workman or any Trade union of workman of which such a workman is a member . As per Section 9c of Industrial Disputes Act . Here it is not case of first party that, union is not a trade union and concerned workamn is not a member ofit. On the contrary it is admitted position that concerned workman is Prsident of the Union. So in my considered view the quarrel raised by the first party regarding status of the union and making out case that it has no locus standi to espouse the case has no meaning . So I observe that, the said union has locus standi to represent concerned workman Gawde , involved in the reference .

Issue No. 5 :

8. Shri Gawade, concerned workman was served a charge sheet . He was asked to face the enquiry. Charge of leaving work place on and often and disturbing the disciplinary rules are levelled against concerned workman . Admittedly concerned workman did not participate in the enquiry and enquiry proceeded exparte . Relying on the evidence Inquiry Officer observed concerned workman guilty of the charges and relying on that disciplinary authority took decision of removal from employment of concerned workman by way of punishment. Again if we turnto Section 2A of Industrial Disputes Act which reads like this:

[ Dismissal etc. of an individual workman to be deemed tobe an industrial dispute-Where any employer discharges , dismisses , retrenches or otherewise terminates the services of an individual workman, any dispute or difference between that workman and his employer connectedwith , or arising out of , such discharge , dismissal , retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute. ]

9. As far as this provision is concerned, we find as per it, if an employer discharges , dismisses , retrenches or otherwise terminates the service of individual workman, any dispute or difference between workman and his employer connected with said shall be deemed as an "industrial dispute " . Here removal from the services is a sort oftermination of the individual from the employment. First party compulsorily retired Gawade , concerned workman which terminate the employment of second party with first partyand this order of the first party squarely fall under Section 2A which second party can espouse individually or with the help of union about his employment . So I am of the opinion that, compulsory retirement is a punishment . Moreover if we considered the age of concerned workman who was of 48 years when compulsorily retired from the employment , where age 60 is the retirement age , require to be treated as termination of services . By termination , employment comes to an end. Likewise by " compulsory retirement " the employment comes to an end. So in my considered view, in this case "compulsory retirement" is nothing more than termination . And on the contrary it is the termination of the second party from the employment of first party. Accordingly I answer this issue to that effect .

Issue No. 6 & 7 :

10. Relying on the finding given by Inquiry Officer who observed second party guilty of the charges , punishment of " compulsory retirement " was given to the concerned workman which is nothing but termination. According to second party, said punishment is harsh and not proper . Whereas case of the first party is that , no other punishment can be given to the employee of this type against whom charges of leaving workplace often , charge of interfering in the day to day security matters and not maintaining decorum are levelled against concerned workman and proved.

11. As stated above enquiry was proceeded exparte and even by passing part - I award this court observed enquiry was not fair and proper and vis - a - vis findings were perverse . Said order was challenged by first party before Hon'ble Bombay High Court which was heard by Single Bench and then by Divisional Bench observing first party can challenge all that on the final order of this Court .

7005

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खण्ड 3 (ii) ]

12. In the second round of litigation , first party led evidence by examining its witness Sidique at Ex . 47, Chavan at Ex. 48, Birwątkar at Ex . 49 and by examining Suresh Vidhwan at Ex/52 where as second party examined only concernedworkman, Rajaram Gawade Ex . 54.

unauthorisedly are established though not proved that he was doing that on and often as claimed by the first party. The fact is that, he found leaving place and using telephone . No doubt as observed above , the nature of talk took place between second party and the person to whom he telephone is not on record which does not lead to conclude that, second party has disclosed the secret. But at the same time, possibility of disclosing secret by using such phone cannot be ruled out.

15. So all these reveals that, charge levelled against concerned workman are proved of charges leaving work place and using telephone unauthorisedly. Though it was a single event proved by the first party , it does not mean that, said offence is not committed by conecerned workman. All these reveal that , charges are proved but not as expected take to such type of action of removal from the employment.

16. On these grounds , first party decided to compulsorily retire concerned workman from the employment . As observed , compulsory retirement is nothing but bringing end to the employment of said workman and it has no other meaning that of termination of employment.

17. It is matter of record that, concerned workman is of48 years age when asked to retire compulsorily. He was asked to retire on 15-03-2000 . Every illegal act has proportionate punishment upto it's credibility . Looking to the nature of charges levelled and looking to the charges proved, I am of the opinion that , punishment of compulsory retirement is harsh one . At the same time first party is public undertaking. The employee working there must be cautious and careful while discharging their duty. Every misconduct has proportionate punishment and that analogy must be applied to the case of concerned workman against whom what charges are proved.

13. It is pertinent to note that , all four witnesses of first party described how concerned workman was behaving in the workplace and how his attitude was and how many times he was warned . Even they stated that , said workman was using telephone without permission and was talking with third person . They also alleged that , he was arrested by Police for not discharging proper duties being a security person and he was penalized to give bond of good behaviour . Even they made out case that, he was leaving workplace on and often and was not maintaining discipline in the workplace. They reply given by concerned workman that , once he utilised telephone that too on account of sickness of his wife . But it is pertinent to note that, no any eivdence is led by concerned workman on that point to establish that , he utilised phone with out permission due to emergency i.e. due to sickness of his wife . He admits that, he has t produced medical evidence onthat point . Even he admits that, he was prosecuted and was ordered to give bond of good behaviour to maintain peace law and order' . Even he admits that, he lodged number of complaints with his superiors with intention to bring into notice about irregularities in the establishment of the first party . As far as various complaints filed by the concerned workman is concerned about so called irregularities in the establishment of first party management is concerned, we have nothing to do with it. But he admits that, he did all that . Moreover he admits that, once he left the workplace and utilized telephone . It is fact that there is no direct evidence about nature of talk which second party did duting that period and even it is not expected what sort oftalk might have done as it cannot made available unless tape of such talk is produced. Besides question arises how much authentication will be to such type of tape to read in the evidence ? However fact is that, there were some allegations and those were proved against concerned workman since he admits it.

18. So if we considered all this coupled with case made out by both , I conclude that , punishment of compulsory retirement is harsh one and as a result of it first partymust reinstate him but in different department without giving any benefit of backwages and continuity of service from the date of compulsory retirement till he is taken in employment . Hence the order:-

ORDER

1. Reference is partly allowed .

2. Order of punishment of compulsory retirement is quashed and set aside directing first party to take concerned workman , Shri R. R. Gawade in its employment but in different department by fresh appointment within three months of this order .

3. Conerned workman is only entitled for continuity of service for pension purpose but not backwages attached to his previous post with no order as to cost.

Date : 06-07-2007

A. A. LAD, Presiding Officer 14. In that scenario , it is to be noted that, second party was working in the Security department which is rather important and highly concerned with security . It is fact that, he was union leader and he himself invited number ofangers from the management side due to his behaviour and conduct . The record and proceedings reveal that , he was very well versed with writing and making complaints . Besides he was union leader and not a simple labourer . Still he remained absent in the enquiry . He gave no reason as to why he did not face the enquiry and I think by selecting the move 'not to attend the enquiry' was the decision of the concerned workman to take dis - advantage in saying that, enquiry was conducted exparte and so charges are not aproved against him and as a result of it management cannot take action . On the contrary evidence led reveals that, charge of leaving place on and often , charge of using phone 7006

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3( ii) ]

AWARD

नई दिल्ली , 21 अगस्त, 2007

का.आ. 2622, 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 182/2004) को प्रकाशित करती है, जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

The Central Government , Ministry of Labour vide OrderNo. L- 12012/563/98 - 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. 281/99 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. 182/2004.

[सं. एल-12012/563/1998- आईआर( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 21st August, 2007

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

"Whether the demand of the workman Shri R. Kolanginathan , wait list No. 520 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ? "

S.O. 2622. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 182/ 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 21-8-2007 .

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

[No. L- 12012/563/1998 - 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. 182/2004

[Principal Labour Court CGID No. 281/99 ]

(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. Kolanginathan

: I Party/Petitioner

AND

TheAssistant General Manager , II 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

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 Asaveerankudikadu branch from 02-01-1981 . The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank, in addition to its counter , filed a copy of settlement under Section 18( 1) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, 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 Asaveerankudikadu 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 02-01-1981, the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Asaveerankudikadu 7007

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[ भाग II-खण्ड 3 ( ii) ]

branch, another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-1997 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 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 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 .

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. 520 in waitlist ofZonal Office, Trichys . 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 36calendar 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 520 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 7008

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[PART II-SEC. 3 ( ii) ]

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:

Industrial Establishment ( Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/casual labour . Further, for circle 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 Resporident 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 interms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concernedandwhile the matter was pending in Writ Petition No. 542 (Civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated 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 ofthe Petitioner in Wait List No. 520for restoring the wait list of

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[ भाग II-खण्ड 3 ( ii) ]

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 anexhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex.M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx. 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 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 have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched 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 behalfof 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 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 1 is unable to say as towhen the wait list Ex . M10 was prepared, but it is mentioned in Éx . M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as

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[PART II-SEC. 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 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 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 .

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 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 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. M10which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the 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-

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[ भाग II-खण्ड 3 ( ii ) ]

proceedings under Section 18(3). A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it willbebinding 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 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 .

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 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 willbebinding 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 of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations of mala fides, fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration. Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD , Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1 ) of the I.D. Actand (ii) those arrived at in the course of conciliation

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

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 sometechnical 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 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 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 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 .

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 Govt . service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that" in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 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 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 -7013

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[भाग II-खण्ड 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 .

15. Learned Senior Advocate further argued that even in recent decisión 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 empioyed 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 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 a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders ofLower Courts . He further relied on the decision reported in1997 II SCC1 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 7014

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[PART II SEC. 3( ii)]

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.

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?

21. Thus , the reference is answered accordingly . K. JAYARAMAN , Presiding Officer

Witnesses Examined :-

Forthe Petitioner

WW1 Sri R. Kolanchinathan 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 cannotbe questioned by the Petitioner .

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex. No. Date Description

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

7015

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[ भाग II-खण्ड 3( ii) ]

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. 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 Хегоx 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 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 Asaveerankudikadu Branch .

W10 15-9-85 Xerox copy of the service certificate issued by Asaveerankudikadu 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 bookon Staffmatters upto 31-12-95. 06-03-97

W13

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

06-03-97

W14

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 .

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 Menial-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 for the month of February , 2005 wait list No. 395 of Madurai Circle .

W20 13-02-95 Xerox copy of the Madurai Modułe 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 ofthe Bipartite meeting.

W23 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms -creation of part time general attendants .

W24 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W25 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

FortheRespondent/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.

M3 27-10-88

M4 9-01-91 Xerox copy of the settlement.

Xerox copy of the settlement .

M5 30-07-96

M6 9-06-95 Хетох copy of the minutes of conciliation proceedings.

M7 28-5-91 Хегоx 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 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 .

7016

[PART II-SEC. 3(ii) ]

L THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA- 24, 1929

नई दिल्ली, 21 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. 16/99 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. 15/2004.

का.आ. 2623.-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 15/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012 / 290/1998 - आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi, the 21st August, 2007

"Whether the demand of the workman Shri M. Sundararaj , wait list No. 227 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ? "

S.O. 2623 .---In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 15/ 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 21-8-2007 .

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

[No. L- 12012/290/1998 - 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. 15/2004

[Principal Labour Court CGID No. 16/99 ]

(Inthe 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

Sri M.Sundararaj

: IParty/Petitioner

AND

II Party/Management

The Assistant General Manager , StateBank of India , Zonal Office, Coimbatore .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative .

: M/ s . K. S. Sundar ,

For the Management

Advocates

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/290/ 98 - IR (B - I) dated 01-02-1999 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 Tiruppur Main branch from 31 August , 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 filedby State Bank Employees' Union in Writ Petition No. 542/87 which was taken 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 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 31-08-1982, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working as such , 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 at Tiruppur OSB branch , the Manager of the branch informed the Petitioner orally on 31-3-1997 that his 7017

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[भाग 11-खण्ड 3 (ii) ]

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 representationto Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number 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 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 .

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 for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 227 in waitlist of Zonal 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 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 36calendar 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 , out of 705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 227 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.

3677G1/07-15 7018

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[PART II-SEC. 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 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 ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees , Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542( Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated 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 :--

(1) "Whether the demand of the Petitioner in Wait List No. 227 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[ भाग II खण्ड 3 ( ii) ]

inclusion except his bald statement . Further , according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . Itis further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comparises of both messengerial and non -messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore, it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not in conformity withthe 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 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 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 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 Exs . 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 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 ofthe guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex. W8 , Further , the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engagedby the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even 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 thatsettlement 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- [PART II-SEC. 3 (ii )] 7020

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

and it constitutes post reference period and hence evidence of Respondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service 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 itselfis not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18 (3 ) of the ID. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed engager' in leave vacancy was used as a device to take them out of the principal clause 2 (oo) of the 1.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which 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 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/Bankhas produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18(3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 7021

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

[ भाग II-खण्ड 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 thefreewill of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject - matter of yet another industrial dispute which an appropriate 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 .

(

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, if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The 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 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 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 7022

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II SEC . 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 LABIC1664 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/ Bankand 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 inthis appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom 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 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. 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 [भाग II-खण्ड 3 ( ii) ]

7023

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

for applications which means he had entered by a back 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 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 .

り

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 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 vacancyncy 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 concept of retrenchment therefore , cannot be stretched to

[PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances, I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further , the representative for the Petitioner contended that in 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?

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

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 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.

For the Petitioner

WW1 Sri M.Sundararaj WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan

Documents Marked :----

Ex. No. Date Description

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

भारत को राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

W2 20-04-88

W19 31-03-97 Xerox copy of the appointment order to Sri G. Pandi.

Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex. M1.

W20 Feb. 2005

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 .

W21 13-02-95

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

W4 01-05-91

Xerox copy of the 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 .

W22 09-11-92

W5 20-08-91

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

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

W23 09-07-92

15-03-97

Xerox copy of the minutes of the Bipartite meeting.

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

W24 09-07-92

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

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.

W25 07-02-06

W8 Nil

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

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

W26 31-12-85

W9 19-07-83 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 .

W10 Nil

For the Respondent/Management : ----

Xerox copy of the termination notice issued by Tiruppur Branch .

Ex. No. Date

Description

1-06-95

W11

Xerox copy of the servicve certificate issued by Tiruppur Branch .

17-11-87 Xerox copy of the settlement .

W12 Nil

M2 16-7-88 Хегоx copy of the settlement .

M3 27-10-88 Хегохx copy of the settlement .

M4 9-01-91 Хегоx copy of the settlement .

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

W13 Nil

30-07-96 Xerox copy of the settlement .

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

M6 9-06-95

W14 06-03-97

Xerox copy of the minutes of conciliation proceedings.

M7 28-5-91

Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-V . Muralikannan .

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

W15 06-03-97

M8 15-5-98 Хегоx copy of the order in O.P. No. 2787/97 of High Court of Oríssa .

Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-K. Subburaj .

W16 06-03-97

10-7-99 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

W17 17-03-97

Xerox copy ofthe wait list of Coimbatore Module.

Xerox copy of the service particulars- J. Velmurugan.

M11 25-10-99

W18 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

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

3677 Gl/07-16 7026

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

नई दिल्ली , 21 अगस्त, 2007

का.आ. 2624.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 185/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था । [सं. एल -12012/568/1998 - आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 21st August , 2007

S.O. 2624. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 185/ 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 24-8-2007 .

[No. L- 12012/568/1998 - 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. Jyaraman, Presiding Officer Industrial Dispute No. 185/2004

[Principal Labour Court CGID No. 286/99 ] (Inthe matter ofthe 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 S. Pitchaimuthu

[PART II-SEC. 3 (ii) ] Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 286/99 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. 185/2004.

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

"Whether the demand of the workman Shri S. Pitchaimuthu wait list No. 399 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 StateBank of India, Region - 1 Trichirapalli.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative .

: M/ s . K. S. Sundar

For the Management

Advocates

AWARD

1. The Central Government Ministry of Labour , vide OrderNo. L- 12012/568 /98 - IR (B- I ) dated 26-04-1999 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 Kulithalai branch from August, 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 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 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 orallyto join at the branch where he initially worked as a class IV employee . From August, 1984 the Petitioner has been working as a temporary messenger and some time performingwork in other branches also . While working on temporary basis in Kulithalai 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 7027 [भाग 11-खण्ड 3 ( ii) ]

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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 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 .

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 for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 399 in waitlist of Zonal Office, Trichy. So far 212 waitlisted 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 the waitlist and it was also agreed that waitlist was to lapse in December , 1991 and the cut off date was extended upto 31-3-1997 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 waitlisted candidates , 212 temporary employees were appointed and since the Petitioner was waitlisted at 399, 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 verifiedbefore 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 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 7028

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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 waitlist drawn for appointment ofdaily wages/casual labour . Further, for circle of Chennai waitlist 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 .

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 that 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 :-

(1) "Whether the demand of the Petitioner in Wait List No. 399 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) ] "To what relief the Petitioner is entitled?" (ii)

Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the 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 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 . 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 Resporident/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 .

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Petitioners who are retrenched messengers and are eligible. to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC2248 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. 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 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 rnessengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich ismarked as Ex. W8. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions. In such circumstances, the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex..W2 four types 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 thatsettlement 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-

[PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 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 .

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 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.M10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it. Though clause 2(e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination 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 . M1 to M5 . Above all, though the Respondent/Bank has referred to voluntary retirement scheme . In the

[ भाग II-खण्ड

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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. " Hẹ further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at , on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate 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 .

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 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 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. of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer andto discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i ) those arrived at outside the conciliation proceedings under Section 18(1) of the I.D. Act and ( ii) those arrived at in the course of conciliation . proceedings under Section 18 (3) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it

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[PART II-SEC. 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 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 LABIC1664 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 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 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 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 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 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 7033 [भाग II-खण्ड 3 (ii) ]

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for applications which means he had entered by a back 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 .

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 ofLower Courts . He further relied on the decision reported in1997 II SCC1 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 I.D. Act. The conceptof retrenchment therefore , cannot be stretchedto

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/ BHADRA 24, 1929

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 ofservice by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . " 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service . Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was 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 .

[PART II-SEC. 3 (ii)] 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 Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him. Therefore , I find this point against the Petitioner .

PointNo. 2 :

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

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.

(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 Witnesses Examined:-

For the Petitioner WW1 Sri S. Pitchaimuthu 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 .

[भाग II- खण्ड 3 ( ii) ]

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

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of massenger vacancies and filling them before 31-3-97 .

Nil

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

W9 06-07-84 Xerox copy of the letter from Respondent/Bank to Petitioner calling forinterview..

W10 NII

Xerox copy of theservice certifiacate issued by Kulittalai branch .

W11 Nil Xerox copy of the service particulars of Petitioner .

W12 Nil

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

W13 Nil

Xerox copyof theVol. III Reference book onStaffmatters upto 31-12-95 .

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V . Muralikannan .

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W16 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

W17 17-03-97 Xerox copy of the service particulars- J. Velmurugan .

W18 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

7035

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

W19 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W20 Feb. 2005 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 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

09-11-92

W22

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

W23 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W24

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

07-02-06

W25.

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

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

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 Xerox copy of the settlement .

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 .

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

M910-07-99 Xerox copy ofthe 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 .

7036

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC.3( ii) ]

AWARD

नई दिल्ली , 21 अगस्त , 2007

का.आ. 2625.-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 184/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/566/1998 - आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

1. The Central Government , Ministry of Labour, vide Order No. L- 12012/566/98 - 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 thedispute on its file as CGID No. 284/99 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. 284/2004 .

New Delhi , the 21st August , 2007

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

S.O. 2625. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 184/ 2004) of the Central Govemment 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 21-8-2007 .

"Whether the demand of the workman Shri A. Palaniappan wait list No. 240 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 ?"

[No. L- 12012/566/1998 - IR(B-I) ]

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

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. 184/2004

[Principal Labour Court CGID No. 284/99 ]

(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 A. Palaniappan

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative .

For the Management : M/ s . K. S. Sundar Advocates

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Nellikuppam branch from 1981. The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject- matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent/Bank, in addition to its counter , filed a copy of settlement under Section 18( 1 ) reached between management of State Bank ofIndia and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Nellikuppam branch . He was called for an interviewby a Committee appointed by Respondent/ Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 1981 the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Nellikuppim branch , another advertisement by the Respondent/Bank was made 7037

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24 , 1929

[भाग II-खण्ड 3 ( ii) ]

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 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 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 repugnantto 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 accordingtotheir 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 bydirecting 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 togrant relief of regular employment in Respondent/ Bank with all attendant benefits .

Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espousedby State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987,16-07-1988, 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. 240 in waitlist of Zonal 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 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 240 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 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/ 7038

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is ju stified?"

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

PointNo. 1 :

to Workmen) Act , 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment 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 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 settlernent 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 settlernent 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 hank 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 vwages and other attendant benefits.

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. 240 for restoring the wait list of

7039

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointinent 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 & IC2248 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 retrenchedl workmen . Therefore , the contention of the Respondent/' Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex. M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . M1 and the averments 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, 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 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. M1, M3 and M4 respectively. But,

when MW1 has spoken about the settlements , he deposed thatsettlement 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 amountsto 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 Responderit/Bank by 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 of absorption . Therefore, it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not inconformity with the instructions of Ex .M2 and non - preparation of separate panels amounts to violation of circular. Secondly, it has not 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 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 7040

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007 /BHADRA 24, 1929

[PART 11-SEC. 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 itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under 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 entitledto thebenefits under the provisions of 1.Ds 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 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 .

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 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 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 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

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[ भाग II-खण्ड 3 ( ii) ]

proceedings under Section 18(3) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will bebinding 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 fairandreasonable . " 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.

12. But, as against this on behalf ofthe Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of 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 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 thosewho belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or aminority union from scuttling the settlement. " It further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration ." Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and ( ii) those arrived at in the course of conciliation

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THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II -SEC. 3 (ii ) ] 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 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 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 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 is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitledto 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 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 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 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 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 7043

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[भाग !! खण्ड 3 ( ii) ]

should be regularised even though ( a) no vacancy is 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 seriors 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 thàn 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 .

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 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 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

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)]

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 canrfot 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 Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner .

Point No. 2:

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

21. Thus, the reference is answered accordingly.

(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 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 .

Witnesses Examined: -

For the Petitioner WW1 Sri A. Palaniappan 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, 7045

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[भाग II-खण्ड 3( ii) ]

Documents Marked:-

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97 .

W8 Nil Xerox copy of the 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 particulars of Petitioner in Nellikuppam Branch .

07-07-97

W10

Xerox copy of the statement showing number ofdays the Petitioner worked in Nellikuppan 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 matters upto 31-12-95. 06-03-97

W13

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

06-03-97

W14

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

06-03-97

W15

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

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

W17 26-03-97 Xerox copy of the letter advisting selection ofpart time MenialG. Pandi .

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

Feb.2005

W19

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

13-02-95

W20

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

09-11-92

W21

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

09-07-92

W22

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W23

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.

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

Xerox copy of the settlement .

17-11-87 M1

Xerox copy of the settlement .

16-7-88 M2

Xerox copy of the settlement .

27-10-88 M3

Xerox copy of the settlement .

9-01-91 M4

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xeгох 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 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 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 .

7046

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[PART II-SEC. 3 (ii)] नई दिल्ली , 21 अगस्त , 2007

the dispute on its file as CGID No. 12/99 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. 11/2004.

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

का.आ. 2626. 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 न्यायलाय , चेन्नई के पंचाट ( संदर्भ संख्या 11/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012./323/1998 - आईआर (बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 21st: August , 2007

"Whether the demand of the workman Shri P. Sivanandham, wait list No. 271 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. 2626. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947), the Central Government hereby publishes the Award ( Ref. No. 11/ 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 workrnen , received by the Central Government on 21-8-2007.

[No. L- 12012/323/1998 - 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. 11/2004

[Principal Labour Court CGID No. 12/99]

(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. Sivanandam

: I Party/Petitioner

AND

The Assistant General Manager ,: II Party /Management State Bank of India , Zonal Office , Coimbatore.

APPEARANCE

Forthe Petitioner : Sri V.S. Ekambaram, Authorised Re presentative .

For the Management : M/ s . K. S. Suridar, Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/323/98-IR (B- 1) dated 01-02-1999 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 branch on 1-2-79 . 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 Bhavani Hewas called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 01-02-79 the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working as such , 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 at Bhavani 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 [ भाग II खण्ड 3 ( ii) ]

7047

भारत का राजपुत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

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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 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 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 bypayment ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-1987 ,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. 271 in waitlist ofZonal Office , Coimbatore . So far 211 wait listed temporary candidates , out of 705 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is falseto 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 271 , 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 .

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 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 contendedthat 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 toprotect the legal and constitutional rights of the workmen concemed 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 .

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 :----

(1) "Whether the demand of the Petitioner in Wait List No. 271 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

7049 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 . Ml and the averments of MW1 and MW2 and their testimonies during the cross -examinationwill 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, BandC' , 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 guidelinesmentioned in Reference Book onStaffmatters, 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 alongwith 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 underEx. 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, whenM.W1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since theHigh Court order is there, buthe 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 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 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 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 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 thecredibility 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. 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 3677 GI/07-19 7050

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

[PART II-SEC. 3 ( ii) ]

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 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 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.

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 forthe averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees. Though 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 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

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7051

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 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 onę among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Fürther , 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 .

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 andtherefore, 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 allworkmen 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 I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18 (3) . Α 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 ofthe establishment . Even in case of the first category, if the settlement was reached with a representative union of

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

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 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 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 isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

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 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 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 of his appointment ; (d) his record of service 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.VIJEĘSH 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 7053

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

[भाग II-खण्ड 3 (ii ) ]

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 hut only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recentdecision 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 whe 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 émployment 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 LTD . AND OTHERS VS. SOMVIR SINGH, wherein the 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 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 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 7054

THE GAZIETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3 (ii)]

Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services 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 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 ofpurportedperiod 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 CORPORATIOIN VS. S.C. PANDEY wherein the Supreme Court has held ti nat " only because an employee had worked for more than 2'4'0 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation, privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him. No Costs.

21. Thus, the reference is answered accordingly.

(Dictated to the P. A. , transcribed and typed by him, correctedandpronounced by me in the open court on this daythe 31st January, 2007. ) '

K. JAYARAMAN, Presiding Officer

Witnesses Examined: ---

16. Relying on all these decisions , learned coun sel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he be en appointed in regular vacancy or sanctioned post , tihe 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/ Banik 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 ment ioned 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. I Jnder such circumstances , it cannot be questioned by the Petitioner.

For the Petitioner

WW1 Sri P. Sivanandam WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan

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

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 alleg ations with regard to preparation of wait list and also settle ments 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 individua' I in the wait list . Further , the Petitioners have not question ted the settlement and they have not alleged that settleme nt was not a bona fide in nature or it has been arrived at on a account ofmala fide, misrepresentation , fraud or even corruş ətion or. other inducements . Under such circumstances , I f ind the

Хегоx copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex.M1 .

[ भांग II-खण्ड 3 ( ii) ]

7055

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

W3 24-04-9124-04

Feb. 2005

W20

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

Хегоx 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 Хегох 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

Хегоx 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 minutes ofthe Bipartite meeting.

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

W24 09-07-92

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..

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 11-09-79

W26 31-12-85

Хегоx copy of the service certificate issued by Bhavani Branch .

W10 11-08-80

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

Xerox copy of the service certificate Bhavani Branch .

For the Respondent/Management :-

W11 30-09-97 Xerox copy of the service certificate issued by Bhavani Branch .

Ex. No. Date

Description

W12 31-12-95

M1 17-11-87 Хегоx 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 issued by Respondebt/Bank regarding recruitment to subordinate cadre & service conditions .

M3 27-10-88 Хегоx copy of the settlement .

W13 Nil

M4 9-01-91 Хегоx copy of the settlement.

Xerox copy ofthe Vol . III of Reference book on staff matters 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 call letter from Maduri zonal office for interview of messenger post-V. Muralikannan .

Хегох copy of the minutes of conciliation proceedings .

W15 06-03-97

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

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

M8 15-05-98

W16 06-03-97

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

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

M9 10-07-99 Хегох copy of the order of Supreme Court in SLP No. 3082/99 .

17-03-97

W17

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 ofpart time Menial-G. Pandi .

M11 25-10-99

31-03-97

W19

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 .

7056

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007 /BHADRA 24, 1929

[PART II-SEC. 3 (ii)] नई दिल्ली, 21 अगस्त, 2007

the dispute on its file as CGID No. 182/99 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. 75/2004.

का.आ. 2627.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 75/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/474/1998 - आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 21st August , 2007

"Whether the demand of the workman Shri D. R. Kuppusamy, wait list No. 411 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. 2627. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 75/ 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 , receivedby the Central Government on 21-8-2007 .

[No. L - 12012/474/1998- 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. Jyaraman, Presiding Officer Industrial Dispute No. 75/2004

[Principal Labour Court CGID No. 182/99]

(Inthe matter of the dispute for adjudication under clause (d) ofsub -section (1) and sub - section 2(A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) , between the Management of State Bank of India and their workmen)

BETWEEN

Sri D: R. Kuppusamy

: I Party/Petitioner

AND

The Assistant General Manager, II Party/Management State Bank of Indía, Z. O. Madurai

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative .

For the Management : Mr. D. Mukundan, Advocates

AWARD

1. The Central Government, Ministry ofLabour, vide Order No. 1-12012/474/98 - IR (B - I) dated 12-03-1999 has referred this dispute earlierto 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 Usilampatti branch from 01-11-1980. 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. 542/87which 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 IVtemporary 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 01-11-80 the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Usilampatti branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service duringthe 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 [ भाग II-खण्ड 3 (ii) ]

7057

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

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 donot 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 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 17-11-87,16-07-88 , 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. 411 in waitlist 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 submittedto 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 wasto lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 411 , 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 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 3677 Gl/07-20 [PART II-SEC. 3(ii)] 7058

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent /Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil) 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 .

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. 411for 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 ? "

भारत का राजपत्र सितम्बर 15, 2007/भाद्र 24, 1929.

[ भाग II खण्ड 3 ( ii) ]

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 by the Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non -messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative of 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 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 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 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 applied 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 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 1is 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 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 to this wait list. Further the Hon'ble High Court has held in 7060

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii) )

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 whichthe Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 11 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.

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 . M10which 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 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 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 months

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

[भाग II-खण्ड 3( ii)]

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 freewill of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, 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. Leamed counsel for the Respondent further contended thatthough the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' 'The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the 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 in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTELAND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh 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, if points of difference are discernible from the materialbefore it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again. ".It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of thePetitioner to find out the exact nature ofdispute instead 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 ASSOCIATEDGLASS 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 theydid not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Leamed counsel for the Respondent further relied on the rulings reported in 1997 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. " Leamed 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 ). Α 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 the settlement was reached with a representative union of whichthe contesting workmen were members and ifthere 7062

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[PART II-SEC.3 (ii) ] ofrefusing toanswer the reference on merits. " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings 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 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 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.

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 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 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 yearlypanel expiring on 6-2-98, we are of the opinion that theRespondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA whereinthe 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. 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 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 7063 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

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 .

Supreme Court has held that " regularisation furthermore , 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 actbut 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 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 & 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 7064

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii) ]

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 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.

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 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 to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore."

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him. No Costs.

21. Thus, the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this 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 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.

For the Petitioner WW1 Sri D. R. Kuppusamy WW2 Sri V. S. Ekambaram

For the Respondent MW1 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 .M1 .

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 7065 [भाग 11-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

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 .

Хегох 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 Хегох 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 inThe 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,

W23 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W24 09-07-92

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.

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 . Nit

W25 07-02-06

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

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

W9 22-08-88

W26 31-12-85

Xerox copy of the service certificate issued by Usilampatti branch .

W10 19-05-97

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

Xerox copy of the service certificate issued by Usilampatti branch .

W11 NI

For the Respondent/Management :-

Xerox copy of the attendance register.

W12 Nil

Ex. No. Date

Description

M1 17-11-87 Хегох 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 Respondebt/Bank regarding recruitment to subordinate cadre and service conditions .

M3 27-10-88 Xerox copy of the settlement .

W13 NI

M4 9-01-91 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 Xeгох copy of the settlement .

W14 06-03-97

M6 9-06-95

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

Xerox copy of the minutes of conciliation proceedings.

W15 06-03-97

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-K. Subburaj .

M8 15-05-98

W16 06-03-97

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-J. Velmurugan .

10-07-99 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 Madurai Module .

W18 26-03-97 Xerox copy of the letter advising selection of parttime 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 .

3677 QI/07-21 7066

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[PART II-SEC. 3 (ii)] नई दिल्ली , 21 अगस्त, 2007

the dispute on its file as CGID No. 280/99 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. 181/2004 .

का.आ. 2628. 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 18/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/562/1998 - आईआर ( बी- I ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 21st August, 2007

"Whether the demand of the workman Shri M. Perumal , wait list No. 276 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. 2628.In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 18/ 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 21-8-2007.

[No. I - 12012/562 /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. 181/2004

[Principal Labour Court CGID No. 280/99]

[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

Sri M. Perumal

: 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 , Advocates

For the Management

AWARD

1. The Central Governments Ministry of Labour, vide Order No. L- 12012/562/98 - 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 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 Pondicherry Main branch from 26-12-1981 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter, filed a copy of settlement under Section 18 (1) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied 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 Pondicherry 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 26-12-1981 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Pondicherry 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 at 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 7067.

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[ भाग II-खण्ड 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 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 workunder assumed name or by both which amounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

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. 276 in waitlist of Zonal Office , Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employées 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 276, 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 wás 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 7068

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[PART II-SBC. 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 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 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 .

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. 276 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

[भाग II-खण्ड 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 onbehalfof the Petitioner that Ex . W2, W3 and W8 as well as Ex. M8 which constitute/relate to the circular instructions of the Respondent/ Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . Ml and the averments 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 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 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 ofwhich is marked as Ex. W8. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex .W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M 10 in this case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex. M10 was prepared, butit is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. MI, M3 and M4 respectively. But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non-

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[PART II SEC. 3(ii) ]

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service 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 andtherefore , they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners inthe connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days onlywhen the workmen worked with hammer , sickle or pen 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.

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 SCC201 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 e xisting/ 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 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 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

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

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 freewill of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, 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 .

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 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 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 . " 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 andbindsmerely parties to it and settlement of the second category made with a recognised majority union has

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

[PART II-SEC. 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 questionwhether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC1664 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 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 .

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 of vacancies and consequently , a certain number of bottom personswere removed from the select list and the remaining selectees were given appointments according to their comparative merits. In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 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 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 7073 [ भाग II-खण्ड 3 ( ij) ]

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 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 but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retainingjuniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

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 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 I1 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 Suprerne 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

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II SEC . 3 (ii) ]

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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner .

Point No. 2 :

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

21. Thus , the reference is answered accordingly. K. JAYARAMAN, Presiding Officer

Witnesses Examined:----

For the Petitioner

WW1 Sri M. Perumal 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 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 .

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

[भाग II-खण्ड 3 ( ii) ]

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 .

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 domessengerial work.

W9 25-06-82 Xerox copy of the service certificate issued by Pondicherry Branch .

W10 06-12-83 Xerox copy of the service certificate issued by Pondicherry Branch .

W11 03-11-92 Xerox copy of the service certificate issued by Vanur Branch.

W12 12-03-93 Xerox copy of the service certificate issued by Vanur Branch .

W13 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by respondent /bank regarding recruitment to subordinate care & service conditions .

W14 Nil Xerox copy ofVol . III of Reference book onStaffmatters 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 ofthe call letter from Madurai zonal office For interview of messenger post-K. Subburaj .

W17 06-03-97 Xerox copy of the call letter from Madurai 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 selection of part time Menial-G. Pandi .

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W20 31-03-97 Xerox copy of the appointment order to Sri G. Pandi.

W21 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 of Madurai Circle .

W22 13-02-95 Xerox copy of the Madurai Module circular letter about engaging temporary employees from the panel of wait list. 09-11-92

W23

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

W24 09-07-92 Xerox copy of the minutes of Bipartite meeting.

W25 09-07-06 Xerox copy of the settlement between Respondent /Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

07-02-06

W26

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

W27 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 16-07-88 Xerox copy of the settlement .

M3 27-10-88 Xeгox copy of the settlement .

Xerox copy of the settlement. 9-01-91

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 Хегоx copy of the order in O.P .. No. 2787/97 ofHigh Court of Orissa.

M9 10-07-99 Xerox copy of the order ofSupreme 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.

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[PART II-SEC: 3 ( ii)] नई दिल्ली, 21 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. 10/99 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. 9/2004 .

का.आ. 2629. 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 9/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-08-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/320/1998- आई.आर. ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 21st August, 2007

"Whether the demand of the workman Shri K. Munsamy wait list No. 322 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. 2629. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 9/2004) 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 21-08-2007.

[No. L- 12012/320/1998- 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. 9/2004 (Principal Labour Court CGID No. 10/99)

(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 . K. Munusamy

: I Party/Petitioner

AND

TheAssistant General Manager , II Party/Management State Bank of India , Zonal Office , Coimbatore.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative

: Mr. K. S. Sundar , Advocate

For the Management

AWARD

1. The Central Government, Ministry of Labour, vide Order No. L- 12012/320/98 - IR (B- 1) dated 01-02-99 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 Komarapalayambranch from18-02-1984. 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 Komarapalayam branch . He was called for an interviewby a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 18-02-84, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis inKomarapalayam 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 7077

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[भाग II-खण्ड 3 ( ii) ]

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 of no consequence , since accordingto the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Section 25G & 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 .

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. 322 in waitlist of Zonal Office , Chennai . 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 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 , out of 705 wait listed candidates, 211 temporary employees were appointed and since the Petitioner was wait listed at 322, 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 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 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/ 7078

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[PART II-SEC. 3(ii)]

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

(1) "Whether the demand ofthe Petitioner in Wait List No. 322 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

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

Point No. 1:

country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements, vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees. After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence, for all these reasons, the Respondent prays to dismiss the claim with costs.

= 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 .

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 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.

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 (1) of the Act and not under Section 18(3 ) of the Act. As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

enforceable right for appointment , in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/ offices are not allowed to be in service. exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB & 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 given a rawdeal to the Petitioner from the beginning linking his future withthe 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 etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals weregivenmore beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the

Respondent /Bank has alleged to have prepared only one waitlist for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.M1 , M3 and M4 respectively . But , when MW1 has spoken about the settlements, he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced anydocument 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 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. 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 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 ofArticles 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 7080.

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[PART II-SEC. 3(ii) ]

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 anyrelevance 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 months as enshrined under Section 25B and 25F of the Industrial DisputesAct, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service 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 240days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault 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.

things, it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex. M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalfof 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 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/Bankhas 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 7081

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[भाग II-खण्ड 3 (ii) ]

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 in the terms of the settlement, it must be binding on the contesting workmen also . " He' further relied on the . rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bonafide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

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 10. But , as against this, the learned senior counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence, the question of regular appointment/ absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had 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 anyunion and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD. Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 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 andto discourage an individual employee or aminority union from scuttling the settlement ." Itfurther held that " there may be exceptional cases , where

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[PART II SEC. 3 (ii)]

side of the Respondent that it is beyond the scope of reference is without any substance .

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 .

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. " 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 19976 SCC 584 SYNDICATE BANK & ORS VS. SHANKAR PAULAND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98, we are of the opinion that 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 7083 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र..: सितम्बर 15 , 2007/भाद्र 24, 1929

on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility . It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise.. of confirming these employees , therefore , remained a nullity." Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage 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 ofRespondent /Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala- fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANAAND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ 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 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

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC1 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 7084

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 .

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 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.

open eyes. It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further , the Supreme Court while laying down the law , has clearly held that " unless the appointment is in terms ofthe relevant 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 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. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to 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.

[ भाग II खण्ड 3( ii) ]

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 typedby him, corrected and pronounced by me in the open court on this daythe 31st January, 2007).

K. JAYARAMAN, Presiding Officer Witnesses Examined :-

For the Petitioner WW1 Sri K. Munusamy 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 20-4-88 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 1-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex: W4 .

W5 20-08-91 Хегоx 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 18-09-84, Xerox copy of the service certificate issued by KomarapalayamBranch.

W10. Series Nil Xerox copy of working particulars of Petitioner during 1995-97 .

W11 Nil : Xerox copy of the administrative guidlines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W12 Nil Xerox copy ofthe Vol . III of Reference book on Staff matters upto 31-12-96.

W13 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V . Muralikannan .

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भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

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 .

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 Menial-G. Pandi .

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

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W20 13-02-95 Xerox copy of the Madurai Modurai 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 09-7-92 Xerox copy of the 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 parttime general attendants .

W24 07-02-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

W25 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre , For the Respondent/ Management : --

Ex. No. Date

Description

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 settlement.

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

M6 09-06-95 Хегоx 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 ofSupreme 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 .

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[PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

नई दिल्ली , 21 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. 262/2004.

follows: 2. The Schedule mentioned in that order is as का.आ. 2630, 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 262/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-08-2007 को प्राप्त हुआ था ।

[सं. एल -12012/454/1998- आई आर ( बी-1 ) ]

अजय कुमार, डेस्क अधिकारी

New Delhi , the 21st August, 2007

"Whether the demand of the workman Shri K. Jayaraman , wait list No. 648 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. 2630. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 262/ 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 21-08-2007 .

[No. L- 12012/454/1998 - 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. 262/2004 (Principal Labour Court CGID No. 206/99)

(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

: I Party/Petitioner

Sri .K. Jayaraman

AND

The Assistant General Manager , II Party/Management State Bank of India , Zonal Office , Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative

: M/s. K. Veeramani ,

For the Management

Advocates

AWARD

The Petitioner was sponsoredby Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Maduran thagam branch from 1-12-1980. 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 Maduranthagam 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 1-12-80 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Anna Nagar Westbranch , 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 1. The Central Government , Ministry of Labour , vide Order No. L- 12012/454/98 - IR (B -I ) dated 11-03-99 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. 206/99 and issued notices [ भाग II-खण्ड 3 (ii) ]

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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 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 . 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 .

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. 643 in wait list ofZonal Office, Chennai . So far 357 wait listed temporary candidates, out of 744 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were 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 240days 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 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 643 , 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 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 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 Petitioner was verified before the Petitioner was engaged.

[PART II-SEC. 3(ii)] 7088

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

(ii) "Towhat 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 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 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 hy employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent /Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India. Staff Federation were under Section 18 (1) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent /Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No. 7872 of 1991, the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is false to allege that the settlements are contrary to the rights 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 :

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भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 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 ofthe 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 . 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 are marked as Ex.M1 , M3 and M4 respectively. But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras

circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement: Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as 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 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 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 . ular . Secondly , it has not been prepared as pér instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order in WMP No.11932/91 in W.P. No.7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced atthe time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not 3677 GI/07-24 7090

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929.

[PART II-SEC. 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 240days , 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 .

been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or afterthe settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(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 ofpermanent workmen is illegal ." Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service 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 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 regardto modification of Ex . M1 to M 4 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

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भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

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 incase of the first category , if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the . rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate 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 fromdisputing the same.

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 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 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 Resporident 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

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)] 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 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 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 atternpt 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 rnentioned 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.

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 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 theW.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying onall these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala- fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged. by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANAAND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad-hoc temporary employees who have continued for more than a year should be [भाग II-खण्ड 3(ii)]

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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' 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 ofRespondent/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 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 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

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC1 SECRETARY, STATE of KARNATAKA Vs. UMA DEVI , the Suprerne Court has held that merely because a temporary ernployee 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 appointrnent 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 rgain-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 scherne of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got ermployed 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 7094

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 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 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 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 allegedby him . Therefore , I find this point against the Petitioner .

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 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 isnot disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further, in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days 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 relief the Petitioner is entitled ?

21. Thus , the reference is answered accordingly .

K. JAYARAMAN , Presiding Officer

Witnesses Examined:

For the Petitioner WW1 Sri K. Jayaraman 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.

For the Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam [भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

7095 Documents Marked :-

W18 26-03-97

Ex. No. Date

Description

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

W1 1-08-88

W19 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

W20 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

W21 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 .

W22 09-11-92

1-05-91 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

W23 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 .

W6 15-3-97

W24 09-07-92

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

W7 25-3-97

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

W25 07-02-06

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

W8 Nil

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

W26 31-12-85

Xerox copy of the 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 28-02-81

For the Respondent/Management :-

Xerox copy of the service certificate issued by Madurantakam Branch .

Ex . No. Date

Description

W10 01-10-96

Xerox copy of the service certificate issued by Nanganallur Branch .

17-11-87 Xerox copy of the settlement.

W11 24-09-97

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

Xerox copy of the service certificate issued by Anna Nagar West Branch .

W12 Nil

M3 27-10-88 Xerox copy of the settlement .

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

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

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

09-06-95

W13 Nil

Xerox copy of the minutes of conciliation proceedings.

M7 28-05-91

Xerox copy of the of Reference book on Staff matters Vol . III consolidated upto 31-12-96.

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

W14 06-03-97

M8 15-05-98

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

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

W15 06-03-97

M9 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-K . Subburaj .

M10 Nil

W16 06-03-97

Xerox copy of the wait list of Chennai Module .

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

M11 25-10-99

W17 17-03-97 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 .

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[PART II-SEC. 3(ii) ] नई दिल्ली , 21 अगस्त, 2007

the dispute on its file as CGID No. 75/99 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.53/2004.

का.आ. 2631. 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 53/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/264/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 21st August, 2007

"Whether the demand of the workman Shri R. Govindan , wait list No. 235 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. 2631. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 53/ 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 21-8-2007 .

[No. L- 12012/264/1998 -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. 53/2004

[Principal Labour Court CGID No. 75/99]

(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

Sri R. Govindan

I Party/Petitioner

AND

The Assistant General Manager , II Party/Management StateBank of India, Z.O. Madurai .

APPEARANCE

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/ 264/98 - 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 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 Adalurbranch from 01-08-1983 . 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 Adalur 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 01-08-83 , the Petitioner has been working as a temporary messenger and some time performingwork in other branches also . While working on temporary basis in Dindigul 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 [भाग II-खण्ड 3(ii) ]

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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 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 regulafising 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 arhounts 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 towork 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 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) 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. 235 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 whohave completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permafient vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problemwas dueto the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 235 , 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.

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 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 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 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 permanentvacancies 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 . 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 .

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 Petitionbefore the High Court in W.P.No.7872 of 1991, the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence , the Petitioner prays that an award may be passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 235 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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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.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 ofwhich is marked as Ex.W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex. W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared onlyone 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 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 dailywager 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 towriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . Itisfurther 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 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 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 inbythem 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 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 7100

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[PART II-SBC. 3(ii)]

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 isfurther contended on behalfof 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 240days in a period of 12 calendar months . He also relied onthe 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 .

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 violationand 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 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 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 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 Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from

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the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate 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 .

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 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 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 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 extendedapplication as it will be binding on all workmen 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 NATIONALENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by

[PART II-SEC. 3(ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 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 .

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 .

discriminatory. " He further relied on the rulings reported in 1997 6SCC584 SYNDICATE BANK & ORS. Vs. SHANKAR PAULAND OTHERS wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98, we are of the opinion that 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 INDIAwhereinthe 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. 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 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 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 Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits. In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and [ भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

7103

that his juniors were made permanent by the Respondent/ Bank. Any how, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore, the claim is to be dismissed with costs .

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii) ]

claim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further, the représentative 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.

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 ."

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 toclaim regularisation or reinstatement in the Respondent/ Bank aş 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 ofmy foregoing findings that the Petitioner isatemporary employee and he is not entitled to be absorbed inregular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus, the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him, correctedandpronounced by me in the open court on this daythe 31st January, 2007) .

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation 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 .

K. JAYARAMAN, Presiding Officer

Witnesses Examined :----

For the Petitioner WW1 Sri R. Govindan WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri M. Perumal .

Documents Marked:-

Ex. No. Date

Description

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

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 intobetween 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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

7105.

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[ भाग II-खण्ड 3 ( ii) ]

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 ofZonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all branches regarding identification of 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 29-02-85 Xerox copy of the service certificate issued by Adalur Branch .

W10 1983-84 Xerox copy of the service certificate issued by Adalur Branch .

W11 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W12 Nil Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95.

W13 06-03-97 Xerox copy 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 .

06-03-97

W15

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

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 Menial-G. Pandi .

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

3677 Gl/07-26

Feb. 2005

W19

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

13-02-95

W20

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list. 09-11-92

W21

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

W22 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W23 31-03-97 Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of parttime general attendants.

W24 07-02-06 Xerox copyopy 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

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 .

Xerox copy of the settlement .

30-07-96

M69-06-95 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 ofHigh 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 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 . ) 7106

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3 (ii) ] नई दिल्ली, 21 अगस्त, 2007

thedispute on its file as CGID No. 76/99 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.54/2004.

का.आ. 2632.-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 54/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/267/1998 - आईआर ( बी-I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 21st August, 2007

"Whether the demand of the workman Shri A. Sundararaj , wait list No. 285 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. 2632. -In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 54/ 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 21-8-2007 .

[No. L- 12012/267/1998 - 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. 54/2004

[Principal Labour Court CGID No. 176/99]

(Inthematterof 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 A. Sundararaj

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 : M/ r . R. Krishnamachari , Advocate

AWARD

1. The Central Govemment, Ministry of Labour , vide Order No. L- 12012/267/98 - 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 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 ontemporary basis at Madurai City branch from 28-09-1984. 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 dénied 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 Madurai Citybranch. 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 28-09-84 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working ontemporarybasis in S. I. Estate Kappalur 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 7107

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[ भाग II-खण्ड 3 ( ii ) ]

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 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 17-11-87, 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. 285 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 servicę 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 285, 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 [PART II-SEC. 3 ( ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

7108,

(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 praysto 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 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 further prayed for reinstatement with back wages and other attendant benefits .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated 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 :-

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[ भाग II-खण्ड 3 (ii) ]

support of the so called non - inclusion except his bald statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 inW.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concernedwith the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , ás 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 MW1 wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paidwages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case oftemporary employees in the matter of absorption . 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 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 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 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.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 , copyofwhich is marked as Ex.W8. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . EvenMW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.M1 , M3 and M4 respectively . But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in 7110

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[PART II-SEC. 3(ii) ]

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service 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 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 , this Tribunal has to pass anaward in their favour .

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 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 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. 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 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

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

[ भाग II-खण्ड 3 ( ii ) ]

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 thefreewill of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate 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.

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 the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . VS. INDUSTRIAL TRIBUNAL A.Ρ. 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 unionwillbe binding on all workmen ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations 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 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

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)] workman tohardship 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 ofrefusingto answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the questionwhether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings 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 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 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 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 19913 SCC47 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. 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 [ भाग II-खण्ड 3( ii) ]

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भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

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 cannotbe 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 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 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.

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

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 uponthe expiry of purported period of probation would not arise." Further, in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR VS. SURINDER KUMAR , the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under 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 ofprevailing market economy, globalisation, privatisation and outsourcing is evident , in view of the settled legal position, as noticed hereinbefore.".

[PART II -SEC. 3 (ii) ] uestioned the settlement and they have not alleged that settlement was not a bona fidein 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 Petioners cannot now uestion the settlements at this stage and since they are only temporary emplioyees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary empolyees to be absorbed , I find the Petitioners cannot claim for reinstatement or regulation 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 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 Govt. in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner .

PointNo. 2 :

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

21. Thus , the reference is answered accordingly . (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 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 doingso. 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.

WW1 Sri A. Sundararaj WW2 Sri V. S. Ekambaram For the Respondent MW1 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 for implementation ofEx. M1.

7115

भारत का राजपत्र: सितम्बर15, 2007/भाद्र 24, 1929

[भाग II-खण्ड 3( ii) ]

W3 24-04-91

W22 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of maessenger post-K. Subburaj .

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

W23 06-03-97

W4 01-05-91

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

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

W5 20-08-91

W24 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

W25 26-03-07

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

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

15-03-97

W26 31-03-97 Xerox copy of the appointment orderto Sri G. Pandi.

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

W27 Feb. 2005

W7 25-03-97

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

W28 13-02-95

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

W29 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

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

W30 09-07-92

3-10-85

. Xerox copy of the minutes of the Bipartite meeting.

Xerox copy of the service certificate issued by Madurai City Branch .

W31 09-07-92

13-09-93

W10

Xerox copy of the service certificate given by Madurai branch of Respondent /Bank.

07-03-94

W11

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

Xerox copy of the service certificate issued by Kappalur branch .

07-02-06

W32

W12 29-03-94 Xerox copy of the service certificate issued by Madurai City branch .

W13 01-6-94

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

Xerox copy of the service certificate issued by Madurai branch .

W33 31-12-85

W14 Nil Xerox copy of the service certificate issued by. Madurai Teppalulam Branch.

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

W15 22-10-94

FortheRespondent/Management:---

Xerox copy of the service certificate issued by Tiruvadanai Branch .

Ex. No, Date

Description

W16 07-11-94

17-11-87 Xerox copy of the settlement .

Xerox copy of the service certificate issued by Therkutheru Branch.

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

W17 22-09-95

M3 27-10-88 Xerox copy of the settlement.

Xerox copy of the service certificate issued by Melur Branch .

M4 9-01-91 Xerox copy of the settlement .

W18 Nil

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

M6 9-06-95

Xerox copy of the service certificate issued by Sidco Indl . Estate , Kappalur branch .

Xerox copy of the minutes ofconciliation proceedings.

W19 Nil

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.

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recuritment to subordinate cadre and service conditions .

M9 10-7-99

W20 Nil

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

M10 NI

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

Xerox copy of the wait list of Chennai Module .

W21 06-03-97

M11 25-10-99

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

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

7116

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii) ] नई दिल्ली , 21 अगस्त, 2007

Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 283/99 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. 30/2004 .

का.आ. 2633. 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 30/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/565/ 1998 -आईआर( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi, the 21st August, 2007

"Whether the demand of the workman Shri M. Balakrishnan , wait list No. 386 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. 2633. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 30/ 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 21-8-2007.

[No. L- 12012/565/ 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. 30/2004

[Principal Labour Court CGID No. 283/99]

(Inthematter of the dispute for adjudciation 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. Balakrishnan

: 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 : Mr. K. Veearmani , Advocate

AWARD

1. The Central Government Ministry of Labour , vide OrderNo. L- 12012/565/98- IR (B - I) dated 23-04-1999 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 Tiruchengodu branch from 8-8-1984. 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 between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment. But , the Petitioner was informed orally tojoin atthebranchwhere he initially worked as a class IV employee . she Petitioner has been working as a temporary messenger and sometime performing work in other branches also . While working as such , another advertisement by the Respondent/ Bankwas made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office 7117

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[भाग II-खण्ड 3 (ii) ]

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 Government to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 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 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 Pétitioner 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

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. 387 in wait list of Zonal 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 to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; (B) thetemporary 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 wastobe considered for seniority in the wäit list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, outof 705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 387, 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 7118

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[PART II-SEC. 3( ii) ]

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

PointNo. 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 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 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 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 .

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18(1) of the Act and not under Section 18(3) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour .

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

(1) "Whether the demand of the Petitioner in Wait List No. 386 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

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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 obnly ofr 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.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) 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 ofwhich is marked as Ex .W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex. W2 four types of waiting lists have to be prepared . But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.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-

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[PART II-SEC. 3( ii )]

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service 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 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 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 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 . M10which 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 . M1 to M4 made in terms of Ex. M6 . Though the Respondent/Banik 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 . 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

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

[ भाग II खण्ड 3( ii) ]

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 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 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 thesedecisions , 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 .

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 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 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 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 andbinds merely parties to it and settlement of the second category made with a recognised majority union has

[PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 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 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 retrenchedfrom 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. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or 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 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 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 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. 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 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 7123

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[ भाग II-खण्ड 3 (ii) ]

for applications which means he had entered by a back 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 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 .

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 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 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 stretchedto

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 employée or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature isnot aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due 7124

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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, inCDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that upreme " it isnot disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days 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 ." 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.

[PART II-SEC. 3 ( ii)] 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 sthat temporary employees are not entitled to claim any rights for. regularisatión , 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 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 allegedby 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 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 . K. JAYARAMAN, Presiding Officer Witnesses Examined :-

For the Petitioner WW1 Sri M. Balakrishnan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan 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 for implementation of Ex .M1 .

7125

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

[ भाग II-खण्ड 3 ( ii) ]

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 08-08-88 Xerox copy of the service certificate issued by Thiruchengodu Branch .

W10 Nil

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

W11 Nil Xerox copy of the Vol . III of Reference book on Staffmatters upto 31-12-95. 06-03-97

W12

Xerox copy of the 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 .

W14 06-03-97 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.

26-03-97

W16

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

W17 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W18 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 of Madurai Circle .

W19 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list. 09-11-92

W20

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

W21 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W22 09-07-92 Xerox copy of thesettlement 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 .

16-07-88

Xerox copy of the settlement .

27-10-88

M4 9-01-91 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 copyopy 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 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.

7126

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)] नई दिल्ली , 21 अगस्त , 2007

the dispute on its file as CGID No. 68/99 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.52/2004.

का.आ. 2634, 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 52/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/366/1998 - आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 21st August , 2007

"Whether the demand of the workman Shri M. Sivagnanam, wait list No. 276 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. 2634.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 52/ 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 21-8-2007 .

[No. L-12012/366/1998 - 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. 52/2004

[Principal Labour Court CGID No. 68/99]

(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

: I Party/Petitioner

Sri M. Sivagnanam

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 . Mr.R. Krishnamachari ,

For the Management :

Advocates .

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/366/98 - 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 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 12-9-1980 . 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 regardto appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. From 12-09-1980, the Petitioner has been working as a temporary messenger and sometime performing work in other branches also . While working on temporary basis in Valandur 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 7127 [ भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

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 Government to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 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 .

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 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. 369 in waitlist 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 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 492 wait listed candidates, 219 temporary employees were appointed and since the Petitioner was wait listed at 369 he was not appointed . The said settlements werebona fide which were the only workable solution and isbinding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and 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 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 7128

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/ BHADRA 24, 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 of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees. After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs.

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms 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 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. 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 ful filled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent /Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour.

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1) of the Act and not under Section 18(3) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff inthe 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 :-

"Whether the demand of the Petitioner in Wait List No. 369for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

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 timeto 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 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-

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

[PART II -SEC. 3(ii)]

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act. It is further contended on behalf ofthe Petitioner that though some of the Petitioners inthe connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that "the expression' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen 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 . Inall 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.

engaged in leave vacancy was used as a device to take them out of the principal clause 2 (00) ofthe I.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to 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 . M10which 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 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

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

[भाग II-खण्ड 3( ii) ]

extended application as it will be binding on all workmen ofthe establishment . Even in case of the first category, if the settlementwas 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 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 .

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 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 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 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

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 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 LABIC1664 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 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/ 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/Banka 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 .

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 of vacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative 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 INDIAwhereinthe 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 čircumstances , 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 7133

भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खण्ड 3 ( ii) ]

for applications which means he had entered by a back 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 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 .

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 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

concept of retrenchment therefore , cannot be stretched to

15.Learned Senior Advocate further argued that even inrecentdecision 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 Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right . " Further, it has also held that "it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due..

7134

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3 (ii) ] 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 sthat 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?

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 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 ofw list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

WW1 Sri M. Sivagnanam WW2 Sri V. S. Ekambaram For the Respondent MW1 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 for implementation of Ex. M1 .

7135 [भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

W3 24-04-91

W20 26-03-97 Xerox copy of the letter advising selection of part time Menial-G. Pandi .

W21 31-03-97

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

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

W4 01-05-91

W22 Feb. 2005

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

Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle. 20-08-91

W23 13-02-95

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

W6 15-03-97

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 circular letter of Zonal Office, Chennai about filling up of vacancies of messnger posts .

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

25-03-97

W25 09-07-92 Xerox copy of the minutes of Bipartite meeting.

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

W26 09-07-92

W8 Nil

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of normis creation of part time 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.

W27 07-02-06

W9 10-11-81 Xerox copy of the service certificate issued by Usilampatti Branch.

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

W10 22-08-88 Xerox copy of the service certificate Usilampatti Branch .

W28 31-12-85

W11 14-05-97 Xerox copy of the service certificate issued by Valandur Branch .

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

Forthe Respondent/Management :----

W12 20-05-97 Xerox copy of the service certificate issued by Usilampatti Branch .

Ex.No. Date

Description

W13 Nil Xerox copy of the attendance register . M1 17-11-87 Xerox copy of the settlement .

W14 Nil

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

M3 27-10-88 Хегох copy of the settlement.

M4 9-01-91 Xerox copy of the settlement .

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

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

W15 Nil

M6 09-06-95

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

Xerox copy of the minutes of conciliation proceedings.

M7 28-05-91

W16 06-03-97

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

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

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

W17 06-03-97

M9 10-07-99

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

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

W18

M10 Nil

06-03-97

Xerox copy of the wait list of Madurai Module.

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

M11 25-10-99

W19 17-03-97

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

Xerox copy of the service particulars- J.Velmurugan.

7136

THE GAZETTE OF INDIA: SEPTEMBER 15, 2007/BHADRA 24, 1929

नई दिल्ली, 22 अगस्त, 2007

का.आ. 2635, केन्द्रीय सरकार संतुष्ट है कि लोकहित में ऐसा अपेक्षित है कि भारतीय रिजर्व बैंक नोट मुद्रण लिमिटेड , मैसूर (कर्नाटक) एवं सालबोनी ( पश्चिम बंगाल ) में सेवाओं को जिसे औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की प्रथम अनुसूची की प्रविष्टि 25 के अन्तर्गत निर्दिष्ट किया गया है , उक्त अधिनियम के प्रयोजनों के लिए लोक उपयोगी सेवाएं घोषित किया जाना चाहिए ।

अतः अब , औद्योगिक विवाद अधिनियम , 1947 (1947 का 14) की धारा 2 के खण्ड ( ढ़ ) के उप - खण्ड ( 6 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्रीय सरकार उक्त उद्योग को उक्त अधिनियम के प्रयोजनों के लिए तत्काल प्रभाव से छः मास की कालावधि के लिए लोक उपयोगी सेवा घोषित करती है। [सं. एस-11017/2/1996- आई.आर. ( पी. एल. ) ] गुरजोत कौर , संयुक्त सचिव New Delhi , the 22nd August, 2007

S.O. 2635. Whereas the Central Government is satisfied that the public interest requires that the services in the Bhartiya Reserve Bank Note Mudran Limited , Mysore ( Karnataka) and Salboni (West Bengal ) which is covered by item 25 of the First Schedule to the Industrial Disputes Act, 1947 ( 14 of 1947) , should be declared to be a public utility service for the purposes of the said Act .

Now, therefore, in exercise of the powers conferred by sub -clause (vi) of clause (n) of Section 2 ofthe Industrial Disputes Act, 1947 , the Central Government hereby declares with immediate effect the said industry to be a Public Utility Service for the purpose of the said Act for a period of six months .

[No. S- 11017/2/1996-IR (PL) ] GURJOT KAUR, Jt. Secy.

नई दिल्ली , 22 अगस्त, 2007

का.आ. 2636. केन्द्रीय सरकार संतुष्ट हो जाने पर कि लोकहित में ऐसा करना अपेक्षित था , औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 2 के खण्ड ( ढ़ ) के उप- खण्ड (vi ) के उपबंधों के अनुसरण में भारत सरकार के श्रम मंत्रालय की अधिसूचना संख्या का.आ.672 दिनांक22-2-2007 द्वारा नाभिकीय ईंधन , संघटक भारी पानी और संबंध रसायन तथा आणविक उर्जा जो कि औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की प्रथम अनुसूची की प्रविष्टि 28 में शामिल है , को उक्त अधिनियम के प्रयोजनों के लिए दिनांक 26-2-2007 से छः मास की कालावधि के लिए लोक उपयोगी सेवा घोषित किया था;

और केन्द्रीय सरकार की राय है कि लोकहित में उक्त कालावधि को छः मास की और कालावधि के लिए बढ़ाया जाना अपेक्षित है;

अतः अब , औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 2 के खण्ड ( ढ़ ) के उप- खण्ड( vi ) के परन्तुक द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए केन्द्रीय सरकार उक्त उद्योग को उक्त अधिनियम के प्रयोजनों के लिए दिनांक 26-8-2007 से छः मास की कालावधि के लिए लोक उपयोगी सेवा घोषित करती है । [सं. एस-11017/3/1997- आई.आर. (पी. एल. ) ] गुरजोत कौर , संयुक्त सचिव

[PART II-SEC. 3( ii) ] New Delhi , the 22nd August , 2007 S.O. 2636.- Whereas the Central Government having been satisfied that the public interest so requires that in pursuance of the provisions of sub -clause (vi ) of the clause (n) of Section 2 of the Industrial DisputesAct , 1947 (14 of 1947) , declared by the Notification of the Government of India in the Ministry of Labour S.O. No. 672 dated 22-2-2007 the service in the Industrial Establishments manufacturing or producing Nuclear Fuel and Components , Heavy Water and Allied Chemicals and Atomic Energy which is covered by item 28 of the First Sechedule to the Industrial Disputes Act , 1947 ( 14 of 1947) to be a Public Utility Service for the purpose of the said Act , for a periód ofsix months from the 26th February , 2007.

And whereas , the Central Govermment is of opinion that public interest requires the extension of the said period by a further period of six months .

Now, therefore , in exercise of the powers conferred by the proviso to sub -clause (vi ) of clause (n) of Section 2 ofthe Industrial Disputes Act, 1947, the Central Government hereby declares the said industry to be a Public Utility Service for the purpose of the said Act , for a period of six months from the 26th August , 2007.

[No. S-11017/3/1997- IR (PL) ] GURJOT KAUR , Jt. Secy.

नई दिल्ली , 22 अगस्त, 2007

का.आ. 2637. औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार नार्दन रेलवे के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , लखनऊ के पंचाट ( संदर्भ संख्या 78/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 20-8-2004 को प्राप्त हुआ था । [सं. एल-41012/ 29/2004- आई.आर. ( बी-I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 22nd August, 2007

S.O. 2637.-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 , Lucknow as shown in the Annexure , in the Industrial Dispute between the management of Northern Railway and their workmen, received by the Central Governrnent on 20-8-2007.

[No. L-41012/29/2004- IR(B - I ) ] AJAY KUMAR , Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM -LABOUR COURT, LUCKNOW PRESENT

Shrikant Shukla , Presiding Officer I.D. No. 78/2004

Ref. No. L-41012/29/2004 - IR(B -I) dated: 30-7-2004 [भाग II-खण्ड 3 ( ii) ]

BETWEEN

Sh . D.P. Awasthi , Divisional Secretary U.R.K.U. , Lucknow, 49 Tilak Nagar Lucknow -226004 .

(Inthe matter of Smt . Nirmala)

AND

1. The Medical Superintendent Northern Railway Charbagh Lucknow-226001 .

2. The Senior Divisional Personnel Officer Northem Railway Hazratganj Lucknow-226001:

AWARD

The Government of India, Ministry of Labour vide their Order No. L- 41012/29/2004- IR(B - I) dated 30-7-2004 has referred the following dispute for adjudication to the Presiding Officer . Central Government Industrial Tribunal- cum-Labour Court , Lucknow for adjudication.

"Whether the action of the Senior Divisional Personnel Officer , Northern Railway and Medical Superintendent, Northern Railway , Lucknow in not granting pension to Smt . Nirmala W/ o Late Bisan Lal w.e.f. 20-12-1992 is justified ? If not what relief applicant is entitled to ?.

The worker Smt. Nirmala W/ o Late Bisan Lal has filed the statement of Claim praying this Court to hold that theopposite parties in not granting pension to Smt . Nirmala w.e.f. 20-12-1992 is not justified and therefore, she is entitled to get family pension w.e.f. 19-12-1992 with the arrears from the opposite parties.

Smt . Nirmala has alleged that Sh . Bishan Lal was the husband of Smt . Nirmala and was appointed on the post of Safaiwala in the establishment of Coaching Depot Officer N.R. Faizabad in scale of Rs . 750-940 and he had completed more than 10 years of service up to 19-12-1992 the date when he expired . It is also alleged that Bishan Lal had passed prescribed medical examination and duly screened and was occupying the status of railway employee . As such , the wife of Late Bishan Lal i.e. Smt . Nirmala is entitled to receive family pension w.e.f. 20-12-1992. The opposite parties though gave appointment to Smt . Nirmala on 29-11-94 as safaiwala on compassionate grounds under dying in harness rule but did not grant family pension . Smt . Nirmala has further submitted that she is entitled to family pension.

Smt. Nirmala has filed photo copy of death certificate ofBanshi Lal , photo stat copy of pay slip , photo stat copy ofprivilege traveling pass dated 16-6-92 and appointment letter in respect of Smt . Nirmala as safaiwala on daily wages.

The Divisional Personnel Officer , Northern Railway, Lucknow has filed written statement wherein it is admitted that Smt . Nirmala was initially engaged as casual labour . She got status of temporary railway servant and thereafter she is getting all the benefits as per Railway Rules. It is 3677 GI/07-30

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also submitted that she was engaged by the railway as fresh face and treated as casual labour . Her appointment was not on the basis of dying in harness rules as per available records . It is also submitted that Late Bishan Lal was not the regular employee of the Railway administration till his death. The date of death of Late Bishan Lal is wrongly mentioned in the statement of claim as 19-12-1992 instead of3-12-1993 , which is clearly mentioned in the death certificate submitted by the worker himself. The reference sent from the Ministry of Labour , New Delhi is erroneous and liable to be amended as per law. It is also submitted that the worker submitted the photocopies of pay slip , pass . PTO which are not admissible , she must submit the original documents so that the railway administration ensure the genuineness of the papers . The opposte party has specifically denied that Smt . Nirmala is not entitled to the family pension as per railway rules because the deceased worker was not regular employee and was never screened for empanelment of the post as per available records . It is also submitted that Smt . Nirmala was provided the regular postafter screening empanelment , her appointment was not on the ground of compassionate against the death of her husband . Lastly it is alleged that the statement of claim and reference is misconceived and liable to be rejected with special cost .

Shri R.K. Lohra , Dívisional Personnel Officer, DRM Officer,Northern Railway, Lucknow has filed the affidavit along with the photo state copy of invitation of railways issued to Smt . Nirmala for her medical examination along with necessary documents , recommendation for appointment in respect of Smt. Nirmala dated 5-10-94 . Phote state copy of service record , letter of Divisional Officer , Northern Railway . Lucknow dated 13-9-2004 addressed to theGeneral Manager (P) , Legal Cell , New Delhi .

The case was ordered to proceed ex - parte against the opposite party on 29-11-2004 and 10-12-2004 was fixed for ex-parte hearing, but , on 10-12-2004 the worker did not turn.up. The worker was directed to take steps for summoning personal/service file on Bishan Lal and the next date was fixed 14-3-2005 . On 24-3-2005 the worker took steps and notice was sent by speed post .

On 25-4-2005: one Shri Rajendra Singh , advocate moved adjournment application D - 7 without any authority letter and 14-7-2005 was fixed for ex - parte evidence. On 14-7-2005 D - 9 application was moved by the representative of the worker and therefore , 20-10-2005 was fixed for evidence.

On 20-10-2005 Sh . Rajendra Singh again moved an application D- 10 and 31-10-2005 was fixed for disposal of D-10 . Since D- 10 application was in fructuous therefore the next date was fixed 9-1-2006 for evidence of Smt . Nirmala. She was given the opportunity to file affidaviat in support of his case but on 9-1-2006 neither worker nor the opposite party appeared only representative of Smt . Nirmala appeared . Smt . Nirmala or her representative did not file evidence in form of affidavit as ordered therefore she was warned that if her affidavit is not filed till 27-1-2006 the Court shall be disposed of according to law. But as usual Smt . Nirmala did not comply the order and instead the representative moved application D- 11 which was 7138

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[PART II-SEC. 3 (ii)] allowed and the worker was allowed to file affidavit on 2-3-2006 . The worker remained absent on 2-3-2006 and the representative of the opposite party Sh. U.K. Bajpai moved. an application C- 13 for recall of ex -parte order along with authority letter A- 14 , 20-4-2006 was fixed for disposal ofC- 13. Parties did not appear on 20-4-2006 , however, the application C- 13 was disposed of at the cost of Rs . 200/- . After paying the cost was paid next date fixed was 8-5-2006.

the photo stat copy of her appointment order in which the subject of letter is written as " Naye Namitak Sharmik ke roop main lagane ke vishay main " The photo stat copy of the above letter goes to show that she was engaged on daily wages . When regular worker dies in harness and her wife has to be appointed on compassionate ground, the wife cannot be appointed as casual labour on daily wages . The widow has to be appointed as a regular employee on compassionate ground .

The representative of Smt. Nirmala on 8-5-2006 stated thatreference order is defective since Bishan Lal had already expired on 3-12-1992 . Therefore , the reference order has to be amended by the appropriate Government and therefore , Smt . Nirmala be allowed to get the reference order amended. Inthe interest ofjustice the worker was allowed two month's time to get the reference order amended and the next date fixed was 7-8-2006 .

The opposite party has filed paper No. 18/9, which shows that Smt. Nirmala was called for medical examination along with necessary documents and medical examination fee etc. the worker was thereafter engaged as fresh hand as is evident from paper No. 18/10 . Had Bishan Lal been screened , there should have been similar documents in respect of Bishan Lal but no document has been produced by Smt . Nirmala .

The Divisional Personnel Officer of Railways has proved by affidavit that as per the available records Sh . Bishan Lal was not regular employee till his death . There is no reason to disbelieve the Divisional Personnel Officer of the Northern Railway . The representative of the opposite party has argued that the benefit or family pension cannot be given to a worker as per extent Rules mentioned in Railway Servant Pension Rules 1993. In this connection the RailwayBoard Letter No. 3214-Circular No. 720 -E/O - IX (Pension)dt . October 26, 1965 is very relevant and the Hon'ble Supreme Court in case of Union of India vs. Ravia Bikaner cited in AIR 1997 SC 2843 decided the matter relating to family pension of employee who is not regularized after screening and empanelment on the post . The Apex Court denied the family pension . The extract of judgment is reproduced below :

Parties absented on 7-8-2006 therefore 23-8-2006 was fixed for evidence of Smt . Nirmala in form of affidavit. Smt . Nirmala did not file any affidavit . The representative of Smt . Nirmala informed that Smt . Nirmala shall file affidavit only after reference order is amended , therefore , 29-9-2006 was fixed hearing . Since no amendment order in the reference order received till 20-12-2006 and the opposite party filedwritten statement A- 17, therefore , Smt. Nirmala wasdirected to file rejoinder on 4-1-2007, but, no rejoinder filed in the circumstances 22-1-2007 was fixed for evidence . The worker did not appear even ón 22-3-2007 , therefore , the case was direct to proceed ex-parte against the worker and 4-4-2007 was fixed for ex -parte evidence . The opposite party fixed affidavit A- 18 on 10-4-2007 and the next date was fixed 10-6-2007 for argument . However , the file could not be put up on 10-6-2007 and 12-7-2007 was fixed for argument . On 12-7-2007 the son of representative of Smt. Nirmala namely Sh . Sanjay Awasthi appeared and opposite party remained absent . Sh . Sanjay Awasthi moved application for adjournment , therefore , 8-8-2007 was fixed for argument .

Today the worker or her representative did not turn up till 3.30 PM and since the case is proceeding ex -parte against the worker , therefore the representative of the opposite party was directed to put fourth his arguments .

Heard argument and perused the evidence on record carefully.

Smt . Nirmala has not mentioned the date , from which Sh . Bishan Lal was engaged as safaiwala . No appointment letter in respect of Sh . Bishan Lal's appointment has been filed in the court.

"TheRailway Board in its letter bearing S. No. 3214- Circular No. 720 -E/ o - IX (Pension) dt. October, 26, 1965 after examining the question, had stated that "That Family Pension Scheme for Railways Employee, 1964 is applicable in the case of regular employees on pensionable establishment. Since the casual labourers will be brought on to the pensionable establishment only on their absorption . against regular temporary posts, it follows that they will comeunder the purview of the scheme from the date oftheir absorption against the regular temporary posts. In other words , the benefits of the Family Pension Scheme for Railways Employee 1964 will be admissible in the case of death of such an employee while in service, only if he had completed a minimum period ofoneyear's continuous servicefrom the date hewas absorbed against a regular temporary post.

In AIR 1988 SC390 , Ram Kumar's case the Supreme Court held that no retrial benefit was available to the widow of the casual who had not been regularized till his death .

As Smt . Nirmala has not been able to prove that her husband died on 19-12-1992 and that he was regular employee or permanently absorbed employee of the railways service , therefore , Smt . Nirmala is not entitled to get any family pension .

Smt. Nirmala has, in para 4 of the statement of claim has stated that Sh . Bishan Lal died on 19-12-1992 but according to the phote state copy of death certificate filed byher it transpires that Sh . Bishan Lal died on 3-12-1992 at -Firzozabad . In the absence of evidence on behalf of Smt . Nirmala it is difficult to believe that Sh . Bishan Lal was a regular employee of the railways . Although Smt . Nirmala has stated that Sh. Bishan Lal has passed prescribed medical examination and duly screened and was occupying the statues of railway employee . No particular date has been mentioned on which Sh . Bishan Lal was medically examined or screened or empanelled . The worker has filed [भाग II खण्ड 3 ( ii ) ]

Learned representative of the opposite party , Shri U.K. Bajpai has also argued that Smt . Nirmala has not pleaded nor proved that she made any representation to the opposite party for family pension . In the circumstances mentioned above the action of Sr. DPO . NR . Lucknow and Medical Superintendent . Northern Railway, Chabagh , Lucknow is not granting family pension to Smt. Nirmala widow of Late Bishan Lal w.e.f. 20-12-1992 is justified and Smt . Nirmala is not entitledto any relief. Award passed acccordingly.

Lucknow 10-8-2007

SHRIKANT SHUKLA, Presiding Officer नई दिल्ली, 22 अगस्त, 2007

का.आ. 2638.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 28/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था । [सं. एल -12012/557/ 1998 - आईआर (बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 22nd August, 2007

S.O. 2638. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 28/ 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 workman, received by the Central Government on 22-8-2007.

[No. L- 12012/557/ 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. 28/2004

[Principal Labour Court CGID No. 275/99] [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 workman]

BETWEEN

Sri M. Bhaskar

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

7139

AWARD

1. The Central Government Ministry of Labour , vide OrderNo. L- 12012/557/98 - IR (B- I) dated 23-04-1999 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. 275/99 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. 28/2004.

follows: 2. The Schedule mentioned in that order is as "Whether the demand of the workman Shri M. Bhaskar , wait list No. 687 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

: IIPartyManagement The Assistant General Manager, State Bank of India , Zonal Office , Coimbatore .

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram,

Authorised Representative For the Management : Mr. K. Veeramani , Advocate 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 Tiruchengodu branch from1-1-1986 . 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 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 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 of interview and also with regard to appointment. But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 1-1-1986, the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Tiruchengodu branch , another advertisement by the Respondent/ Bank was made 7140

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regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to his non- employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent /Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration. The Petitioner was not a party to the settlernent 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 himtoworkunder assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

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. 687 in waitlist 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 settlernent, 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were, no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 687, 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 settlernents 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 countcountry . The Tamil Nadu Industrial Establishment (Conferment of Perrnanent Statusto Workmen) Act , 1981 does not applyto Respondent /Bank and this Tribunal has no jurisdiction to entertain such plea .

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

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

Point No. 1 :

It is not correctto say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment 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 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 . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation 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 :----

(1) "Whether the demand of the Petitioner in Wait List No. 687 for restoring the wait list of temporary messengers in the Respondent/

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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 thelist 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 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 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 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 in conformity with the 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 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 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 eligible to be reinstated . Learned representative for the Petitioner contendedthat in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen towhom 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 . 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 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 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 ma.ked as Ex.MI , M3 and M4 respectively. But, when MW1 [ भाग II-खण्ड 3 (ii) ]

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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 referredto 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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days 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.

has alleged that these petitioners were engaged in leavé 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 SCC201 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 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/Bankhas 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

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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 ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen 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 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the Federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 (1 ) and 18(3) of the I.D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation 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 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

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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 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 LABIC1664 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 jurisdictionto consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . TheLabour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

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 .

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 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 SC@ 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 getany 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 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 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he

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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 .

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 applicationsons 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 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 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

for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a.due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD . AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period ofprobation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 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 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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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 cannut 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?

21. Thus , the reference is answered accordingly. K. JAYARAMAN , Presiding Officer Witnesses Examined :-

For the Petitioner WW1 Sri M. Baskar WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan Documents Marked :-

Ex. No. Date

Description

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

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W2 20-04-88 Хегоx 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 Хегох copy of the advertisement inThe Hindu extending period of qualifying service to dailywagers .

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 instruction in Reference book on staff about casuals not to be engaged at office/branchesto do messengerial work .

W9 08-08-86 Xerox copy of the service certificate issued by Thiruchengodu 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 ofVol . III of Reference book onStaaff matters upto 31-12-95. 06-03-97

W12

Xerox copy of the 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 .

W15 17-03-97 Xerox copy of the service particulars - J.Velmurugan.

W16 26-03-97 Xerox copy of the letter advising selection ofpart time Menial--G. Pandi .

W17 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

[PART II-SEC. 3(ii) ] 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 of wait list. 09-11-92

W20

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

09-07-92

W21

Xerox copy of the minutes of 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 .

123 07-02-06 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 the Respondent/Management :-

Ex.No. Date

Description

Xerox copy of the settlement .

17-11-87

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

9-01-91

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 .

M10 Nil Xerox copy of the 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 .

[ भाग II-खण्ड 3 (ii) ]

नई दिल्ली, 22 अगस्त , 2007.

का.आ. 2639. 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 50/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/376/ 1998 - आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 22nd August , 2007 こ

S.O. 2639. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 50/2004) 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 22-08-2007 .

[No. L- 12012/376/ 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. 50/2004 أحد

(Principal Labour Court CGID No. 66/2004) (Inthe matter of the dispute for adjudication under clause(d) ofsub-section (1 ) and sub-section 2(A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) , between the Management of State Bank of India and their workmen)

BETWEEN

Sri . V. Sounder Raj

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thedispute on its file as CGID No. 66/99 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.50/2004.

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

"Whether the demand of the workman Shri V. Sounder Raj , wait list No. 283 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 State Bank of India , Z.O. , Madurai

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative

For theManagement : Mr. R. Krishnamachari , Advocate

AWARD

1. The Central Government Ministry of Labour , vide OrderNo. L- 12012/376/98 - 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 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 Kalkulam branch from 20-07-1984. 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 under Section 18 (1 ) reached between management ofState Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , 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 Kalkulam 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 20-07-1984, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Kalkulam 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 7150

[PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 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 reliefof 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 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 17-11-1987,16-7-1988 , 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. 283 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 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 283 , 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 [ भाग II-खण्ड 3 ( ii) ]

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

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

PointNo. 1:

plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/casual labour. Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms of the relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned 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 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 inhis favour.

7. In these circumstances , the points for my

consideration are :

(i) "Whether the demand of the Petitioner in Wait List No. 283 for restoring the wait list of temporary messengers in the Respondent/

7152

are marked as Ex. M1 , M3 and M4 respectively . But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , accordingto MW1 wait list under Ex , M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment 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 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 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. 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 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 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.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 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 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 1 is unable to say as to when the wait list Ex . M10 was prepared, butit is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which 47153 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र सितम्बर 15, 2007 / भा / 24 ) (1929THΧΑΟ ΒΗΤ

Further,though the Respondent/Management has exartified two witnesses , the déposition 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 Msi Above all , thoughthe 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 sand 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 25 of the Industrial Disputes Act , therefore, their retrenchment from service is illegal and against the mandatory provisions of Sections 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 LD. 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 11 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 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 of by compulsion of statute , standing orders etc. " It is further , argued that call letters argued that 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 isillegal . 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 calendaremonths 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 favoureses ) innfqpoko od vem stor tarh bied vontad

10. But , as against this , the learned Senior counsel for the Respondent/Bank contended that the reference made by the Government itself is hot maintainable in View ofthe facts and circumstances of the case? The Petitioner in this case and the Petitioners in the commeoted disputes were not in continuous service. Hence, the question T regular appointment/ absorption does not arise at all and 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. 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 forfor many years with the object of depriving them of the status and privileges ofpermanent workmen is illegal. " Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service 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 în 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 willbe deemed to have refused if 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 onon 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 onlyonly with,with roregard 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.

3677 G /07-32 7154

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3( ii) ]

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 willbebinding 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 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 .

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 bon afide 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 bon afide 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 termiņal 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" im 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

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 7155 [भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24, 1929

is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAMwherein 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 reînstated 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 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 .

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

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 of vacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative 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 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 [PARTH SEC. 3 (ii) ] 7156

THE GAZETTE OF INDIA: SEPTEMBER 15, 2007/BHADRA 24, 1929

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 nó 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's 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 ofRespondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4. SCC 1 SECRETARY, STATE OF 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 ofof 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 origin appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment , do not acquire any right. " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature isnot aware of his employment . He accepts the employment withopen 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 appointmentt isis inintterms of the relevant rules and after a proper competition among qualified 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 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 givingof 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 bemoulded in each case having regard to all the relevant facts and circumstances of that case . It cannot bea 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 pürported regulatisation 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 contendedthat these temporary employees were appointed only due to exigencies and they have not appointed against 7157

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

[भाग II खण्ड 3 ( ii ) ]

between the Respondent/Bank and Federation , at the time ofreference, they have not questioned the settlement nor the number allotted to each individual in the wait list . Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of 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 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 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 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 :

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 ás envisaged by relevant rules . " Further, in CDJ 2006 SC 443 National FERTILIZERS Ltd. and OTHERS VS. SOMVIR SS, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise ." Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR , the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 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. PANDEYwherein 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 ."

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him. No Costs .

21. Thus , the reference is answered accordingly.

K. JAYARAMAN, Presiding Officer

Witnesses Examined :----

For the Petitioner

WW1 Sri.V. Sounder Raj WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri M. Perumal

Documents Marked :

Ex. No , Date

Description 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

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 for implementation of Ex . M1 .

7158

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24 , 1929

W3 24-4-91 Xerox copy of the circular of Respondent /Bankto 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 Хегоx 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 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 Nil

Xerox copy of the service certificate issued by Kalkulam branch .

W10 30-06-94 Xerox copy of the service certificate issued by Thalakulam branch. 06-03-97

W11

Xerox copy of the service certificate issued by Kothanallur branch .

24-07-97

W12

Xerox copy of the service certificate issued by Kalkulam branch .

24-07-97

W13

Xerox copy of the service certificate issued by Kalkulam branch.

24-07-97

W14

Xerox copy of the service certificate issued by Kalkulam branch .

W1505-12-02 Xerox copy of the receipt given by Petitioane to Respondent/Bank for coolie charges .

[PART II-SEC. 3( ii)]

W24 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-J. Velmurugan .

17-03-97

W25

Xerox copy of the service particulars- J. Velmurugan.

26-03-97

W26

Xerox copy of the letter advising selection ofpart time MenialG. Pandi .

31-03-97

W27

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

W28 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 of Madurai Circle .

W29 13-02-95 Zerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of wait list .

09-11-92

W30

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

09-07-92

W31

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W32

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

W33

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

31-12-85

W34

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

For theRespondent/Management :---

Ex. No. Date

W16 30-06-97 Xerox copy of the service certificate issued by Thalakulam branch .

06-03-97

W17

Xerox copy of the service certificate issued by Kothanallur branch .

24-07-97

W18

Xerox copy of the service certificate issued by Kalkulam branch .

W19 24-07-97 Xerox copy of the service certificate issued by Kalkulam branch .

W20 Nil

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

W21 Nil

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

06-03-97

W22

Xerox copy of the call letter fromMadurai ZonalOffice for interview of messenger post-V. Muralikannan .

06-03-97

W23

Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-K. Subburaj .

Description

Xerox copy of the settlement.

17-11-87

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement .

27-10-88

Хегоx copy of the settlement .

09-01-91

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Хегоx copy of the minutes of conciliation proceedings.

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil Xerox copy of the wait list of 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 , 22 अगस्त, 2007

का.आ. 2640. 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 111/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था । [सं. एल -12012/240/1998 - आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 22nd August , 2007 S.O. 2640. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 111/2004) 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 22-8-2007 .

[No. L- 12012/240/1998 -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. 111/2004 [Principal Labour Court CGID No. 101/99] (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 K. Sivagnanam

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

7159 Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 101/99 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. 111/2004.

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

"Whether the demand of the workman Shri K. Sivagnanam, wait list No. 589 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 , Region - I Trichirapalli

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative .

For the Management : M/ s . V. Sundar Anandan , Advocates

AWARD

1. The Central Government Ministry ofLabour, vide Order No. L- 12012/240/98 - IR ( B- 1) dated 08-02-1999 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 Tirukkovilur branch frơm 01-01-1980. 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 Tirukkovilur 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 01-01-80 the Petitioner has been working, as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Tirukkovilur 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)] 7160

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 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 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 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 praystogrant 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 17-11-87,16-07-88 , 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 femporary employees and the Petitioner was wait listed as candidate No. 589 in waitlist 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 the wait list and it was also agreed that wait list wasto lapse in December, 1991 and the cut off date was extendedup to 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid, and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid . settlements , out of 652 wait listed candidates , 212 temporary . employees were appointed, and since the Petitioner was wait listed at 589 , 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 suchplea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged.

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[ 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 ofChennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption. Hence, for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored 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 . 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 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 settlements 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. 589 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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[PART II-SEC. 3(ii) ] 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.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 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 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. 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, 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 . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non-messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx. M 10 namely wait list is not inconformity with the instructions of Ex . M2 and non -preparation 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/ 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. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out ofthe principal clause 2 (oo) of the I.D. Act, 1947 . Though the Petitioner's work in the Respondent/Bank is [ भाग II-खण्ड 3 ( ii) ]

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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 1. D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.D.s have not completed 240 days, since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on whichthe Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc " It is furthe . , 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.

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) ofEx. М4 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 bow 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 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. 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

7164

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 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.

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 HOTELAND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh 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 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 ofpleading of Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were 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 allworkmen 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 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 7165 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits."

Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAG NATHAN ORIENT PAPER MILLSVS. 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 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 itframedto 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 .

acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number 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 andthefact 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 ofthe bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore, the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions, learned counsel for the Respondent contended that since the Petitioner has no 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. 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 entered by a back door; (c) he was not eligible and qualified forthepost at the time ofhis appointment; ( d) his record of

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the rulings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come- first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA Vs. UMA DEVI, the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature 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 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 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 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 is given, it would be an exercise in futility . It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts, their disengagement is not arbitrary ." He further relied on [ भाग II-खण्ड 3 (ii) ]

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not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption 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.

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 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 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 Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market econoıny, 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 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 , 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 för 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 .

Witnesses Examined :-

Forthe Petitioner WW1 Sri K. Sivagnanam 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 .

[PART 11-SEC. 3(ii)] 7168

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

31-03-97

W19

W2 20-04-88

Xerox copy of the appointment order to SriG. Pandi .

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

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 of wait list .

Хегоx 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.

Хетоx 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 of the minutes of Bipartite meeting.

Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger 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 messenger vacancies and filling them before 31-3-97.

07-02-06

W25

W8 Nil

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

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

31-12-85

W26

W9 18-08-84 Xerox copy of the service certificate issued by Thirukkovilur branch .

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

W10 Nil

Forthe Respondent/Management : -

Xerox copy of the service certificate issued by Thirukkovilur branch .

Ex. No. Date

Description

16-05-91

W11

Xerox copy of the service certificate issued by RMY Manalurpet branch.

Xerox copy of the settlement .

17-11-87

W12 Nil

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement .

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 Respondebt/Bank regarding recruitment to subordinate care & service conditions .

Xerox copy of the settlement .

30-07-96-

W13 Nil

M6 09-06-95

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

Xerox copy of the minutes of conciliation proceedings .

06-03-97

W14

M7 28-05-91

Xerox copy of the call letter from Maduri Zonal Office for interview of messenger post--V . Muralikannan .

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

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 ZonalOffice for interview of messenger post-K. Subburaj .

M9 10-07-99

06-03-97

W16

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

M10 Nil

Xerox copy of the call letter from Maduri ZonalOffice 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 ) ]

7169

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

नई दिल्ली, 22 अगस्त, 2007

the dispute on its file as CGID No. 147/99 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. 27/2004.

का.आ. 2641.-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 27/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/283/1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 22nd August , 2007

"Whether the demand of the workman Shri G. Selvaraj wait list No. 340 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. 2641. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 27/ 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 22-8-2007.

[No. L- 12012/283/ 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. 27/2004

[Principal Labour Court CGID No. 147/99 ]

(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 G. Selvaraj

: I Party/Petitioner

AND

The Assistant General Manager , : II Party/Management StateBank of India, Zonal Office, Coimbatore.

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative.

For the Management : M/ s . K. S. Sundar , Advocate

AWARD

1. The Central Government, Ministry of Labour, vide Order No. L- 12012/283/ 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 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 Ammapettai branch from 22-3-1982. 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 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 Ammapettai 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 22-3-82, the Petitioner has been working as a temporary messenger and some time performing work in other branches alsó . While working on temporary basis in Ammapettai 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 3677 G1/07-34 7170

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 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 .

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) 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. 340 in wait list 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies. In terms of aforesaid settlements, out of 705 wait listed candidates, 211 temporary employees were appointed and since the Petitioner was wait listed at 340 , 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.

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

7171

(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 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 , 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 Employées 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 . 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 inedical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18(1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 340for 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 15, 2007/BHADRA 24, 1929

MW1 wait list under Ex . M10 was prepared on 2-5-92but 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 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/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 and 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 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 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 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 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 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 ofretrenched temporary employees into 'A, B and C' , but this categorization of ' A, B and C' is quite opposed to the doctrine of ' last come first go ' or ' first come- last go' and therefore , the categorization in Clause 1 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 weregivenmore beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex .W2 four types ofwaiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for 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 7173 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र :.. सितम्बर 15, 2007/भाद्र 24, 1929

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 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 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.

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 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 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 . 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

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[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 SC469NATIONAL 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 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 .

length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was waitlisted and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS 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 bebinding 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 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

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

7175 again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " 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 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 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 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 there fore , 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. 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 difficultto 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 leamed 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 for applicationsations which means he had entered by a back [PART II-SEC . 3 (ii)] 7176

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come first go ' is not mandatory but only directory , 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 permanentrmanent 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 . " 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 whichwould 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 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 arn 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 [ भाग II-खण्ड 3 (ii) ]

7177

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

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 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.

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 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 of the Constitution of India would be void in law. " Further , in2006 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 casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Courtprobably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him. Therefore , I find this point against the Petitioner.

PointNo. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary empioyee 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 reiief 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 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 .

K. JAYARAMAN, Presiding Officer

Witnesses Examined:-

For the Petitioner WW1 Sri G. Selvaraj WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan 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

3677 GI/07-35 7178

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3( ii)] Documents Marked :-

W17 17-03-97

Ex. No. Date

Xerox copy of the service particulars - J. Velmurugan.

Description

W18 26-03-97

01-08-88

Xerox copy of the letter advising selection ofpart time MenialG. Pandi .

Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W19 31-03-97

W2 20-04-88

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

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

W20 Feb. 2005

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

24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

01-05-91

W22 09-11-92

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

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 .

W23 09-07-92 Xerox copy of the minutes of Bipartite meeting.

W6 15-03-97

W24 09-07-92

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

W7 25-03-97

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

W25 07-02-06

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

W8 Nil

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

W26 31-12-85

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

W9 08-08-86

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

Xerox copy of the service certificate issued by Ammapettai Branch .

For the Respondent/Management :---

W10 7-11-97

Ex. No. Date

Description

Xerox copy of the service certificate issued by Ammapettai Branch .

W11 Nil

17-11-87 Xerox copy of the settlement .

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

Xerox copy of the documents showing the dates on which the Petitioner received petty cash .

M3 27-10-88 Xerox copy of the settlement .

W12 Nil

M4 9-01-91 Xerox copy of the settlement.

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

M6 09-06-95

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

Xerox copy of the minutes of conciliation proceedings.

W13 Nil

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

Xerox copy ofVol . Ill of Referencebook onStaffmatters upto 31-12-95.

M8 15-05-98

W14 06-03-97

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-V. Muralikannan .

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

W15 06-03-97

M10 Nil

Xerox copy ofthe wait list of Coimbatore Module.

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

W16 06-03-97

M11 25-10-99 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 Maduri zonal office for interview of messenger post-J. Velmurugan.

[भाग II-खण्ड 3 (ii ) ]

नई दिल्ली, 22 अगस्त , 2007

का. आ. 2642, 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 116/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/400/1998 - आई.आर. ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 22nd August, 2007 2 =

S.O. 2642. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 116/ 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 22-8-2007 .

[No. L- 12012/400/1998 - 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. 116/2004

[Principal Labour Court CGID No. 106/99 ] [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

Sri R. Elangovan

: I Party/Petitioner

AND

The Assistant General

: II Party/Management Manager , StateBank of India , Region - I Trichirapalli.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised

Representative .

For the Management

: M/sV. Sundar Anandan . Advocates

7179

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AWARD

1. The Central Government , Ministry of Labour, vide Order No. L- 12012/400/98 - IR (B -I ) dated 08-02-1999 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. 106/99 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. 116/2004.

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

"Whether the demand of the workman Shri R. Elangovan , 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 :-

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 Neyveli main branch from 07-05-1982. 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 Neyveli 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 07-05-1982, the Petitioner has been working as a temporary messenger, and some time performing work in other branches also . While working on temporary basis. in Nanganallur branch , another advertisement by the Respondent /Bank was made 7180

[PART II-SEC. 3 ( ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to 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 ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

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 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. 294 in waitlist ofZonal Office , Trichy. So far 212 wait listed temporary candidates, out of 652 waitlisted 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 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 extendedup to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 652 wait listed candidates , 212 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 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement , The settlement drawn under provisions of Section 18( 1) and 18(3 ) of I. D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in 7181

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[भाग II खण्ड 3 (ii ) ]

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 :

(Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence , for all these reasons, the Respondent prays to dismiss the claim with costs.

8. 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 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 . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation 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 :--

(1) "Whether the demand ofthe Petitioner in Wait List No. 294for restoring the wait list of

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[PART II-SBC. 3 (ii)]

= have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB & IC2248 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 . 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 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 1 is illegal . Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex. W8. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore, these persons who were engaged by the Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . EvenMW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4

respectively . But, when MW 1 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 wasconcerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . 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 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 isviolative ofArticles 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 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 dated1-8-88. 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 andMadurai 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 [भाग II-खण्ड 3 ( ii ) ]

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7183 :

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 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 & 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 onlywhentheworkmen 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 circums- tances , this Tribunal has to pass an award in their favour.

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 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 . 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 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

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[PART II-SEC. 3 ( ii) ]

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 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 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the freewill of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, 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 antong 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 femporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated inservice with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

accepted the settlements drawn under the provisions of Sections 18(1 ) and 18 (3) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation 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 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 lawofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from 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 outsidethe conciliation proceedings under Section 18( 1)

[ भाग II- खण्ड 3 ( ii ) ]

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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 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, 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.

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 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 decísion 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 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. 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/ 3677 G1 /07-36 7186

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 is to be dismissed with costs .

temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy; (b) he 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 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 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 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 inrecent decision reported in 20064 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is not open to the Court to prevent regular. recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargainnot 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 ment [भाग II-खण्ड 3 ( ii) ]

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, 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 ofprobation 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 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 . "

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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.

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?

21. Thus, the reference is answered accordingly.

(Dicated to the P.A. , transferred and above typed by him, corrected abd pronounced by me in the open cpurt on this day the 31st Januart, 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 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.

17. I find much force in the contention of the learned counsel for the Respondent. Though in the Claim

WW1 Sri R. Elangovan WW2 Sri V.S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj 7188

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 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 of the circular letter of Zonal Office , Chennai about filling up of vacancies of messnger posts .

W7 25-03-97 Хегоox 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/branchesto do messengerial work .

W9 23-11-81 Xerox copy of the service certificate issued by Neyveli Branch .

16-11-83

W10

Xerox copy of the service certificate issued Neyveli Branch .

W11 19-03-96 Xerox copy of the service certificate issued by Anna University Branch .

02-09-96

W12

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

19-12-94

W13

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

W14 25-07-97 Xerox copy of the service certificate issued by Nanganallur Branch .

W15 Nil

Xerox copy of the adminstrative gudelines 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 Staff matters upto 31-12-95 .

W17 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

W18 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) ] W19 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J . Velmurugan .

W20 17-03-97 Xerox copy of the service particulars- J. Velmurugan.

W21 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W22 31-03-97 Xerox copy of the appointment order to Sri G. Pandi.

W23 Feb. 2005 Xerox copy of the pay slip ofT. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

W24 13-02-95 Хегох сору of the Madurai Module circular letter about engaging temporary employees from the panel of wait list .

09-11-92

W25

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

09-07-92

W26

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W27

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 .

W28 07-02-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

31-12-85

W29

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 16-07-88 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 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 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 , 22 अगस्त, 2007

का.आ. 2643.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक आफ इंडिया 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 110/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/254/1998 - आई.आर. (बी.Ⅰ ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 22nd August , 2007 S.O. 2643. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the award (Ref. No. 110/ 2004) 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 22-8-2007.

[No. L- 12012/254/1998 - 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. 110/2004 [Principal Labour Court CGID No. 100/99] [In the matter of the dispute for adjudciation 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.Neelamegam

: I 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 Mangaement

: M/ s.V. Sundar Anandan , Advocates

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AWARD

1. The Central Government , Ministry of Labour , vide OrderNo. L- 12012/254 /98 - IR (B - I ) dated 08-02-1999 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. 100/99 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. 110/2004 .

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

"Whether the demand of the workman Shri S. Neelamegam wait list No. 575 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ?"

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

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed ontemporary basis at Kattur ADB branch from 01-07-1975.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 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 01-07-1975 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also. While working temproary basis in Trichy Main branch, another advertisement by the Respondent/ Bank was made 7190

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

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 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. 575 in waitlist of Zonal Office , Trichy . 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 . 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was wait listed at 575, 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 [ भाग II-खण्ड 3( ii) ]

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भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

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:

does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) 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 opportunityto work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 (1 ) of the Act and not.under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthe Petitioner . Hence , the Petitioner prays that an award may be passed in his favour .

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

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 7192

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[PART II-SEC. 3 ( ii )] have invoked the relevant provisions of Chapter V -A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC2248 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 givena rawdeal 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/ cașual 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 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 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 MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard tothis wait list . Further the Hon'ble High Court has held in 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 , 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/Bank by combing equals with unequals . Itis further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex .M10 comparises of both messengerial and non -messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter 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/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 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 1

[ भाग II-खण्ड 3 ( ii ) ]

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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 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 anaward in their favour .

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 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 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 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-

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[PART II-SEC. 3 (ii)]

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 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 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 .

accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bon afide 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 ruling 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 . " 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 19971 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

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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 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 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.

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 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 yearlypanel 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 maia 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. 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 shouldbe 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/ 7196

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[PART II-SEC. 3 (ii) ]

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 stretchedto such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , theirdisengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of ' 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 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 .

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 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 initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amountto decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise 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 clairı any absorption in the Respondent/Bank . Furthet , he relied on

the rulings reported in AIR 1997 SCC ASTEMANET KUMAR VIDYARTHI & ORS . VI SLANGE BHIHARANG

15. Leamed Senior Advocate further argued that even in recentdecision 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 Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right. " Further , it has also held that itis 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 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 Ferms 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 [ भाग II-खण्ड 3 (ii) ]

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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.

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 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 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 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 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 .

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 was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner .

For the Petitioner

WW1 Sri S. Neelamegam WW2 Sri V. S. Ekambaram

For the Respondent

MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj 7198

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

Documents Marked :-

[PART II SEC. 3 (ii) ]

W19 17-03-97

Ex . No. Date

Description

W1 01-08-88

Xerox copy of the service particulars- J.Velmurugan.

W20 26-03-97

Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2 20-04-88

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

W21 31-03-97

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

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

W22 Feb. 2005

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 Хегох copy of the advertisement in The Hindu on daily wages based on Ex. W4.

W5 20-08-91 Хегоx copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

Xerox copy of the pay slip of T. Sekar for the month 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

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

W9 08-08-88 Хегоx copy of the service certificate issued by Kattur ADB Branch .

W10 20-06-95 Xerox copy of the service certificate issued by Palakarai branch

W11 21-06-95

Xerox copy of the minutes of 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 parttime 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

Xerox copy of the service certificate issued by Trichy ZO branch W12 11-11-95 Xerox copy of the service certificate issued by Trichy branch

W13 06-01-97

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 service certificate issued by Trichy branch

Xerox copy of the settlement .

M4

9-01-91

W14 Nil

Xerox copy of the settlement .

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

M6

09-06-95

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

Xerox copy of the minutes of conciliation proceedings .

M7

28-05-91

W15 Nil

Xerox copy of Vol . III of referance book onStaffmatters upto 31-12-95 W16 06-03-97 Xerox copy of call letter from Madurai Zonal office for interview of messenger post V. Muralikannan

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 call letter from Madurai Zonal office for interview of messenger post-J . Velmurugan .

Хегоx copy of the order in W.P. No. 7872/91.

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

[ भाग II-खण्ड 3( ii) ]

7199

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

नई दिल्ली, 22 अगस्त , 2007

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. 150/2004.

follows: 2. The Schedule mentioned in that order is as का.आ. 2644, 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 150/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/405/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 22nd August , 2007

"Whether the demand of the workman Shri K. Santhanakrishnan , wait list No. 297 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. 2644. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 150/ 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 22-08-2007 .

[No. L- 12012/405/1998 - IR (B - I )] AJAY KUMAR, Desk Officer

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

Wednesday, the 31st January, 2007

تو PRESENT Shri K. Jayaraman, Presiding Officer Industrial Dispute No. 150/2004 (Principal Labour Court CGID No. 158/99)

[ 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 workme ]

BETWEEN

Sri . K. Santhanakrishnan

: I Party/Petitioner

AND

TheAssistant 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 . V. Sundar Anandan , Advocates

AWARD

1. The Central Government , Ministry of Labour , vide Order No. L-12012/405/98- IR (B- I ) dated 1-02-99 has referred thisdispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 158/99 and issued notices to both

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 ontemporary basis at Pondicherry Main branch from January , 1982. 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 of the Pondicherry 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 initialły worked as a class IV employee . From January , 1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Thattanchavadi 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 7200

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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. 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 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 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

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. 297 in wait list ofZonal Office, Trichy. So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employecs 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 employeesemployees 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 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 297 , 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.

7201

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 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 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 Wriť 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 .

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 (1) of the Act and not under Section 18 (3) of the Act. As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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

(i) "Whether the demand ofthe Petitioner in Wait List No. 297 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 in the Respondent/Bank under the guidelines and eirculars 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 playecs 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 Section 25G and 25H are very much 3677 Gl/07-38 7202

[PART II SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 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 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 rawdeal 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 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 allegedto 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 . M1 , M3 and M4 respectively . But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras

circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , accordingto MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and . combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe 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 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 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 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 7203

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 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 itconstitutes post reference period and hence evidence of Respondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent /Bank and they are entitled to the benefits under the provisions of I.D. Act . 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 an award in their favour.

been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo) of the I.D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which 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 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 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 ofMadras 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

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24; 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 under Section 18(3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category , if the settlement was reached with a representative union ofwhich the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contestingworkmen also . " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at 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 dernand of the workmanwith wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Government is not valid . Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

12. But , as against this on behalf of the Petitioner it iscontended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18(3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length 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 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 TRIBUNALA.P . AND OTHERS wherein under Section 12 (3 ) the union entered into a settlement with the management settling the clairn 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 bebinding 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 settlernents 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 inducernents . 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 7205 [ भाग II-खण्ड 3( ii) ].

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible fromthe 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 refusingto 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 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 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 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 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 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 HARYANAAND ORS . VS. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now comingto the direction that all those ad - hoc temporary employees 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 settlernent 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 .

who have continued for more than a year should be 7206

[PART II-SEC . 3(ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 rightto the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'lastcome- first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence . that his juniors were made permanent by the Respondent/ Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/ Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad-hoc employees who by the very nature of their appointment , do not acquire any right . Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed 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 regularised , we find it difficultto 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 actbut 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 exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies [ भाग II-खण्ड 3 (ii) ]

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. SANBIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period ofprobation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " 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 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 . "

भारत का राजपत्र: सितम्बर 15 , 2007/भाद्र 24 , 1929

7207 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 .

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 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 daythe 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 onlyto restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned 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 ,

WW1 Sri R. Santhanakrishnan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj 7208

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 for implementation ofEx.M1.

W3 24-4-91

[PART II-SEC. 3 ( li )] 06-03-97

W19

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

17-03-97

W20

Xerox copy of the service particulars-- J. Velmurugan

W21 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi 31-03-97

W22

Xerox copy of the appointment order to Sri G. Pandi

W23 Feb. 2005

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 ofthe advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91

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

W24 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list

W25 09-11-92

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

W6 15-3-97

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

W26 09-07-92

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

W7 25-3-97 Хегоox copy of the circular of Respondent /Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

Nil

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

W9 21-05092

Xerox copy ofthe minutes of the Bipartite meeting

09-07-92

W27

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

W28 07-02-06 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 service certificate issued by Koonimedu Branch. 05-08-93

W10

Xerox copy of the service certificate issued by Karikalampakkam Branch. 27-11-93

W11

Xerox copy of the service certificate issued by Karikalampakkam Branch. 20-06-94

W12

Xerox copy of the service certificate issued by Zipmer Pondicherry branch .

23-06-94

W13

Xerox copy of the service certificate issued by Karikalampakkam Branch .

02-0197

W14

Xerox copy of the service certificate issued by Thattanchavadi Branch .

Хегох сору of the local Head Office circular about Appointment of temporary employces in subordinate cadre

For the Respondent/Management : ---

Ex. No. Date

Description

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

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

Xerox copy of the settlement.

27-10-88

Хегоx copy of the settlement.

09-01-91

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

M6

09-06-95

W15 Nil

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

W16 Nil

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

06-03-97

W17

Хегоx 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 Хегоx copy of the 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-V. Muralikannan

06-03-97

W18

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

Xerox copy of the wait list of Chennai Module.

25-10-99

M11

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

[ भाग II-खण्ड 3 ( ii ) ]

7209 भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

नई दिल्ली, 22 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. 24/2004 .

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

का.आ. 2645.-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 24/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 22-08-2007 को प्राप्त हुआ था ।

[ सं. एल -12012/277/1998- आई.आरं. ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 22nd August, 2007

"Whether the demand of the workman Shri A. Dhanasamy, wait list No. 539 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. 2645. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 24/ 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 , receivedby the Central Government on 22-08-2007.

[No. L- 12012/277/1998 - 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. 24/2004 (Principal Labour Court CGID No. 72/99)

[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 . A. Dhanasamy

: 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 ,

Advocates

AWARD

1. The Central Government , Ministry ofLabour, vide Order No. L- 12012/277 /98 - IR (B - I ) dated 05-02-99 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. 72/99 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 Meltur Dam branch from February, 1980. 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 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 Mettur Dam 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 regardto appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a slass IV employee . the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While v temporary basis in Mettur Dam branch , advertisement by the Respondent /Bank was 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 ag on de 3677 G1/07-39 [PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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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 accordingto 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 .

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. 539 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 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 catecategory (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 705 wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 539 , 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 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 18(3) of I.D. 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 7211 [भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

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

Point No. 1:

Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further, for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees. After the expiry of wait list , the Petitioner has no claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this ca se 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 termina ted without any notice . Since the Respondent /Bank termitnated several temporary , employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition be fore 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 Fetitioner 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 clas . IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W.P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence, the Petitioner prays that an award may be passed in his favour.

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

(i) "Whether the demand of the Petitioner in Wait List No. 539 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 15 , 2007/ BHADRA 24, 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 25 F 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.Ml and the averments of MW1 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 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 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 matterof 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 intheMadras 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 dailywager 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 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 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 viclative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex.M 1 namely wait list is not in conformity with the instructions of Ex . M2 and non- preparation of separate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No.11932/91 in W.P. No : 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though 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 [ भाग II-खण्ड 3 (ii) ]

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was implemented only in the year 2001 and it constitutes post reference period and hence evidence of Respondent/ Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service 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 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.

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 . 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 claimedby the Respondent/Bank which says only with regardto modification of Ex . Ml to M 4 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

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

[PART II-SEC. 3 ( ii) ]

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 freewill of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bon afide 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 .

the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that 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 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 todiscourage 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

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भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

مر

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 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.

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 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 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 HARYANAAND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy . The direction in effect means that every ad - hoc/

temporary employee who has been continued for one year 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 7216

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 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 retainingjuniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank. Any how, if the Petitioner has shown anything , the Respondent /Bank is ready to establish the fact before this. Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs.

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 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 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 .

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 [ भाग II-खण्ड 3 (ii) ]

for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 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 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 the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

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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.

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 day the 31st January, 2007.)

K. JAYARAMAN , Presiding Officer Witnesses Examined:

For the Petitioner WW1 Sri A. Dhanasamy WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri S. Srinivasan

Documents Marked :-

Ex. No. Date W1 1-08-88

Description Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

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THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

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 mesnger vacancies .

W4 1-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

W5 20-08-91 Хегоx 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 Referénce 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 Mettur Dam Branch .

W10 24-09-80 Xerox copy of the service certificate issued by Mettur Dam Branch .

W11 Nil

Xerox copy of the appointment orders .

W12 Nil

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

W13 Nil Xerox copy of the Vol . III of Reference book on staff matters upto 31-12-95 .

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

W15 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

06-03-97

W16

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

W17 17-03-97 Xerox copy of the service particulars- J.Velmurugan .

W18 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

[PART II-SEC . 3(ii) ] W19 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W20 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 of Madurai Circle.

W21 13-02-95 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 Head Office circular No. 28 regarding norms for sanction of messenger staff .

W23 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W24 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 .

W25 07-02-06 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 circularabout 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. 16-07-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

09-01-91

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 Хегоx copy of the 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 .

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[ भाग II-खण्ड 3 (ii) ]

नई दिल्ली, 22 अगस्त, 2007

the dispute on its file as CGID No. 145/99 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.26/2004.

का.आ. 2646.--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 26/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-08-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/282/1998 - आई.आर. ( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi, the 22nd August , 2007

"Whether the demand of the workman Shri R. Selvan , wait list No. 338 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. 2646. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 26/2004) 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 22-08-2007 .

[No. L- 12012/282/ 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. 26/2004 (Principal Labour Court CGID No. 145/99)

[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 . R. Selvan

: 1 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

: 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 Ammapettai branch from 8-6-83. 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 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 Ammapettai 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 regardto 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 sometimes performing work in other branches also . While working on temporary basis in Ammapettai 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.

1. The Central Govemment, Ministry of Labour , vide Order No. L- 12012/282/ 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 [PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

7220

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 of no consequence , since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522( 4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their 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.

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. 339 in wait list ofZonal Office , Coimbatore . So far 21 1 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 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 waitlist 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 of705wait listed candidates , 211 temporary employees were appointed and since the Petitioner was wait listed at 339, 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 Statusto 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 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 Section 18 (1) and 18(3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was waitlisted as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those 7221

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[ भाग II-खण्ड 3( ii) ]

thereupon as temporary messenger is justified?"

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

PointNo. 1:

was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these. reasons , the Respondent prays to dismiss the claim with costs .

8. 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 .

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

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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 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 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 Article 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex.M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No.11932/91 in W.P. No.7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M1 was not produced atthe time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner 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 . 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 ofthe guidelines mentioned in Reference Book on Staff matters, copy of which is marked as Ex . W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals 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 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 respectively . But , when [ भाग II-खण्ड 3 (ii) ]

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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 1.D. Act . It isfurther contended on behalf of the Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240days , 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 24( 1 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.

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 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 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 . 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 suppart of the averment and also for the averment of MW1 . Therefore , the terrnination 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 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

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 [PART II-SEC. 3 (ii)] 7224

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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 willbebinding 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 .

12. But , as against this on behalf of the Petitioner it is contended that mere wording ofreference is not decisive in the matter of tenability of a reference and he relied 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 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 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 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 andto 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 7225 [ भाग II-खण्ड 3( ii) ]

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is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide 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 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 in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits. In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory . " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK , & ORS Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion 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 vacaricy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannotbe said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry 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.

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 Further , he relied on the rulings reported in 1992 LAB IC 3677 GI /07-41 7226

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[PART II-SEC. 3 (ii)] 2168 STATE OF HARYANAAND ORS . Vs. PIARA SINGH 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 1.D. Act . The conceptof 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 retainingjuniors . " . Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank . Any how, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . Insuch circumstances, the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

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 thetime 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 lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question ofconfirmation of these employees whose entry itself was illegal and void is concerned , it 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 ,

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY, STATE 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 [भाग II-खण्ड 3 (ii) ]

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 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 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 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 employée 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 heid 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

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भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

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 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 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 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?

21. Thus , the reference is answered accordingly.

K. JAYARAMAN, Presiding Officer 7228

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

Witnesses Examined:

WW1 Sri R. Selvan

Forthe Petitioner

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 20-4-88. Xerox copy of the administrative guidelines issued by Respondent /Bank for implementation ofEx. M1 .

W3 24-4-91 Хегоx copy of the circular of Respondent /Bankto 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 16-11-85 Xerox copy of the service certificate issued by Ammapettai 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 Vol . - III of Refernce book on Staff matters upto 31-12-1995. 06-03-97

W12

Xerox copy of the 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 mesenger post--J. Velmurugan .

W15 17-03-97 Xerox copy of the service particulars -J. Velmurugan .

W16 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi

W17 31-03-97 Xerox copy of the appointment order to SriG. 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 of wait list .

09-11-92

W20

Zerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

09-07-92

W21

Xerox copy of the minutes of the 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 the Respondent/Management :-

Ex. No. Date

Description

Xerox copy of the settlement .

M1 17-11-87

Xerox copy of the settlement. 16-07-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement .

09-01-91

Xerox copy of the settlement .

30-07-96

M6 09-06-95

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy ofthe 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 .

7229

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

[भाग II-खण्ड 3 ( ii ) ]

नई दिल्ली , 22 अगस्त, 2007

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.142/2004.

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

का.आ. 2647, 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 142/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/404/1998- आई. आर. ( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 22nd August, 2007

" Whether the demand of the workman Shr V. Thailapillai , wait list No. 593 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 :-

こ

S.O. 2647. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 142/2004) 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 22-08-2007 .

[No. L- 12012/404/1998 - 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. 142/2004

(Principal Labour Court CGID No. 140/99)

[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

: I Party/Petitioner

Sri. V. Thailapillai

AND

State Bank of India, Region - I ,

TheAssistant General Manager , : II Party/Management Trichirapalli.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative

For the Management : Mr. F. B. BenjaminGeorge, 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 Manapet branch from 9-10-1980. 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 Manapet 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 09-10-1980 , the Petitioner has been working as a temporary messenger and some times performingwork in other branches also . While working on temporary basis in Manapet 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 failurè , 1. The Central Govemment, Ministry of Labour, vide Order No. L- 12012/404/98 - 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. 140/99 and issued notices to both parties . Both sides entered appearance and filed 7230

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii) ] sthe 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 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 ofthe Petitioner is against the provisions of para 522(4) of Sastry Award . Even though the settlement speaks about thrée 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 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

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. 593 in wait list ofZonal Office , Madurai . 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 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 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 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 593 , 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 ) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

7231

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

PointNo. 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 allthe 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. 593for 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 . in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 25G and 25H are very much [PART II-SEC. 3(ii)] 7232

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 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.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 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 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 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 ismentioned 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 asperBipartite Settlement while the 1988 settlement dealt withdaily wager in class IV category who were paidwages 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 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 Article 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex.M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circula regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No.11932/91 in W.P. No.7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M1 was not produced atthe time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not [ भाग II-खण्ड 3 (ii) ]

7233

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

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 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.D.s 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 .

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 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 scttlement 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

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 3677 GI/07-42 7234

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 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 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 onthem andhe is estopped from disputing the same .

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 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 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 tothe same. To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " 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 15 , 2007/भाद्र 24 , 1929

7235

Bank , I find the Petitioner is not entitled to question the settlement.

こ

KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAMwherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of 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 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 LAB IC 1664 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS : wherein the Madhya Pradesh High Court has held that "theTribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation ofthe Labour Court . " Relying on all these decisions, the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

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 /

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 theSupreme 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 of the wait list and he cannot pray for reinstatement as alleged by him. Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANAAND ORS . VS. PIARA SINGH AND OTHERS 7236

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3( ii) ] wherein the Supreme Court has held that " now coming to temporary employees were appointed only due to exigencies andthey 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 ' 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.

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 pursuancesuance of a notification calling for applications which means he had entered by a back door ; (c) hewas not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad-hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption 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 tobe 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 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 onad-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

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

7237

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 , 1 find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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 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 , inCDJ 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 Article 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 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, 1 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, 1 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 .

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

K. JAYARAMAN, Presiding Officer 7238

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

Witnesses Examined:

For the Petitioner WW1 Sri V. Thailapillai 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 20-4-88 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 1-05-91 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 Хегох 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

[PART II-SEC . 3(ii)] 17-03-97

W15

Xerox copy of the service particulars --J. Velmurugan .

26-03-97

W16

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 of wait list .

09-11-92

W20

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

09-07-92

W21

Xerox copy of the minutes of the 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 the Respondent/Management :---

Ex. No. Date

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

Description

Xerox copy of the settlement .

M1

17-11-87

W9 16-03-81 Xerox copy of the service particulars of the petititioner given by Manapet Branch.

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 settlement .

30-07-96

M6

09-06-95

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

Xerox copy of the minutes of conciliation proceedings.

M7

28-05-91

W11 Nil

Xerox copy ofVol . - III of Refernce book onStaffmatters upto 31-12-1995 .

06-03-97

W12

Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-V. Muralikannan .

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

06-03-97

W13

Xerox copy of the 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-K. Subburaj .

06-03-97

W14

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

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.

[भाग II-खण्ड 3 ( ii) ]

नई दिल्ली , 22 अगस्त, 2007

का.आ. 2648.-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 148/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था । [सं. एल-12012/409/1998- आईआर(बी -1 ) ]

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

7239 Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 156/99 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. 148/2004.

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

अजय कुमार , डेस्क अधिकारी

New Delhi , the 22nd August , 2007 S.O. 2648. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 148/ 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 22-8-2007 .

"Whether the demand of the workman Shri R. Venkatraman , wait list No. 255 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 :-

[No. L- 12012/409/1998- 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. 148/2004

[Principal Labour Court CGID No. 156/99] (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. Venkatraman

: I 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 : Mr. K. Sundar Anandan , Advocates

AWARD

1. The Central Government , Ministry ofLabour , vide Order No. L- 12012/409 /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 Pondicherry Main branch from 27-8-1982 . 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 Pondicherry 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 orallyto joinat the branch where he initially worked as a class IV employee . From 27-8-1982, the Petitioner has been working as a temporary messenger and some times performing work inotherbranches also. While working on temporary basis in Pondicherry 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 at 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 [PART II-SEC. 3 (ii)] 7240

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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 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 .

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. 255 in waitlist 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 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 extendedup to 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 255 , 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 .

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

(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 of daily wages/casual labour . Further, for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 ( Civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlernents made by the bank with the State Bank of India Staff Federation were under Section 18(1) of the Act and not under Section 18(3 ) of the Act. As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petitionbefore the High Court in W.P.No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour .

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

(1) "Whether the demand of the Petitioner in Wait List No. 255 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 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)] 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.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 ofwhich is marked as Ex. W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex.W2 four types of waiting lists have to be prepared . But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.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

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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 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,

them out of the principal clause 2 (00) of the I.D. Act , 1947 . Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as 'badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.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 tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad , it is neither a 18 (3) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . 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 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

[PART II-SEC. 3( ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment. Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation inwhich the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

12. But, as against this on behalf of the Petitioner it iscontended 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 IC345 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 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 ofthe conciliation proceedings with a recognised majority unionwill bebinding 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 19971LLJ 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 ) . А settlement of the first category has limited application 7245 [भाग II-खण्ड 3( ii) ]

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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 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, 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 .

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 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. PIARASINGH AND OTHERS wherein the Supreme Court has held that " now comingto 7246

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[PART II-SEC. 3(ii)]

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 ' 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 .

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 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 SCC1 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

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such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for 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.

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.

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 , ifthe original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further , in CDJ 2006 SC443 NATIONAL FERTILIZERS LTD . AND OTHERS VS. 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 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 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?

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

21. Thus, the reference is answered accordingly . K. JAYARAMAN , Presiding Officer 7248

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

Witnesses Examined :-

[PART II-SEC. 3 (ii )]

W16 17-03-97

For the Petitioner WW1 Sri R. Venkatraman WW2 Sri V. S. Ekambaram Xerox copy ofthe service particulars J.Velmurugan.

W17 26-03-97

For the Respondent MW1 Sri C. Mariappan

MW2 Sri T. L. Selvaraj

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

W18 31-03-97

Documents Marked :-

Ex. No. Date

Description

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

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

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W20 13-02-95

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 Madurai Module circular letter about engaging temporary employees from the panel of wait list .

09-11-92

W21

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

W22 09-07-92

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

W5 20-08-91

Xerox copy of the minutes of the Bipartite meeting.

W23 09-07-92

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

W6 15-03-97 Хегоx copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97

Xerox copy of the settlement between Respondent/Bank and All India 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 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 messengerial work .

W9 23-10-85 Xerox copy of the service certificate issued by Pondicherry Branch. 01-09-88

W10

Xerox copy of the service certificate issued by Pondicherry Branch .

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 .

16-07-88

Xerox copy of the settlement .

27-10-88

Xerox copy of the settlement.

9-01-91

M4

Nil

W11

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

Nil

W12

Xerox copy ofVol . III of Reference book on staaff matters upto 31-12-95 .

06-03-97

W13

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

06-03-97

W14

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

06-03-97

W15

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

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 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, 22 अगस्त, 2007

का.आ. 2649.-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/न्याय न्यायालय , चेन्नई के पंचाट ( संदर्भ संख्या 149/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/407/1998- आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 22nd August, 2007

S.O. 2649. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 149/ 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 22-8-2007 ..

[No. L- 12012/407/1998 - 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. 149/2004

[Principal Labour Court CGID No. 157/991 [In the 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

Sri S. Ravi

7249

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 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. 157/99 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. 149/2004 .

follows: 2. The Schedule mentioned in that order is as " Whether the demand of the workman . Shri S. Ravi, 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:

: I Party/Petitioner

AND

The Assistant General Manager , : II Party/Management State Bank of India , Region - 1 Trichirapalli .

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative .

For the Management : M/ s . V. Sundar Anandan , Advocates

AWARD

The Central Government , Ministry of Labour , vide Order No. L-12012/407/98- IR (B - I ) dated 11-02-1999 has 3677 G1/07-44

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 Pondicherry Main branch from 2nd January, 1982. The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filedby State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank , in addition to its counter , filed a copy of settlement under Section 18( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Pondicherry 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 2-1-1982, the Petitioner has been working as a temporary messenger and some time performing work in other branches also. While working on temporary basis in Pondicherry Main branch another advertisementby 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 .

7250

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II SEC. 3(ii)] 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 affer 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 .

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. 267 in waitlist of Zonal 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 aggregaté temporary service in any continuous block of 36 calendar months were to be considered . As per clause7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 267, 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 andthe 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 .

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

[ भाग 11- खण्ड 3 (ii) ]

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

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

Point No. 1 :

It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/casual labour . Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms of the relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned 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 andhas been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/ Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation 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 :-

(1) "Whether the demand of the Petitioner in Wait List No. 267 for restoring the wait list of

temporary messengers in the Respondent/

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 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/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 comparises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative of Article 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non -preparation of separate panels amounts to violation of circular . Secondly, it has not 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 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 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 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 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 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 timeto time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex . Ml and the averments of 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 rnessengers , 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 givenmore 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 . 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 settlements, he deposed 7253 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

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 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.

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 . 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 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-

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 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 .

Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 (1 ) and 18(3) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein urider 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 of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer andtodiscourage 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

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भारत का राजपत्र: सितम्बर 15 , 2007/भाद्र 24, 1929

Bank, I find the Petitioner is not entitled to question the settlement.

WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN 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 Courtis 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/

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 Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circurnstances , 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 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 itwas a yearlypanel 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 Responder:/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 [PART II-SEC. 3(ii)] 7256

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 ' 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 .

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 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 OFBIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it 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 ,

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भारत का राजपत्र: सितम्बर 15 , 2007/भाद्र 24, 1929

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 .

こ

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 bonafide 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.

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 hot 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 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 and16 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 aboutby 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.

PointNo. 2 :

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

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 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

3677 G1 /07-45 7258

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

Witnesses Examined :-

For the Petitioner WW1 Sri S. Ravi 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 Хегох copy of the paper publication in daily Thanthi based on Ex. M1 .

W2 20-04-88 Хегоx copy of the administrative guidelines issued by Respondent/Bank for implementation 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 Хегоx copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

W5 20-08-91 Хегоx 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 Хегоx 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 09-09-82 Хегоx copy of the service certificate issued by Pondicherry Branch .

W10 23-10-92 Xerox copy of the service certificate issued by Thattanchavadi Branch .

W11 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by respondebnt/bank regarding recruitment to subordinate cadre & service conditions .

W12 Nil

Xerox copy ofVol . III of Reference book onStaffmatters 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 .

06-03-97

WI4

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

06-03-97

W15

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

[PART II-SEC. 3 (ii) ] W16 17-03-97 Xerox copy ofthe service particulars- J.Velmurugan.

W17 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W18 31-03-97 Xerox copy of the appointment orderto SriG. 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 .

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 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 .

W24 07-02-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

W25 31-12-85 Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management :----

Ex. No. Date

Description

M1 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..

Хегоx copy of the settlement .

9-01-91

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 Хегоx copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa .

M9 10-07-99 Xerox copy of the order of Supreme Court 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, 22 अगस्त, 2007

का.आ. 2650.-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 147/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था । [सं. एल-12012/411/1998- आईआर( बी-1 ) ]

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Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 155/99 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. 147/2004 ..

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

अजय कुमार , डेस्क अधिकारी

New Delhi , the 22nd August , 2007

S.O. 2650.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 147/ 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 22-8-2007 .

[No. I - 12012/411/ 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. 147/2004

[Principal Labour Court CGID No. 155/99] (In the matter of the dispute for adjudiation under clause (d) of sub - section ( 1) and sub- section 2(A) of Section10 ofthe Industrial Disputes Act , 1947 (14 of 1947 ) , between the Management of State Bank of India and their workmen)

BETWEEN

Sri M. Veeramani

: I Party/Petitioner

AND

The Assistant General Manager, II PartyManagement State Bank of India , Region - 1 , Trichirapalli .

APPEARANCE

For the Petitioner

: Sri V.S. Ekambaram,

Authorised

Representative .

: M/ s. V. Sundar For the Management

"Whether the demand of the workman Shri M. Veeramani , wait list No. 482 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 :

Anandan, Advocates

AWARD

1. The Central Govemment , Ministry of Labour , vide Order No. L- 12012/411/98 - 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 January , 1981. The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject- matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent/ Bank, in addition to its counter , filed a copy of settlement under Section 18( 1) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, 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 January , 1981 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Lalgudi, 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 7260.

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[PART II-SEC. 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 referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number ofdays 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 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 ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 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. 482 in waitlist 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 36calendar 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was wait listed at 482, he was not appointed . The said settlements were bona fide which were the only workable solution and 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.

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

Point No. 1:

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 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 concemed 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 .

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 ofthe Petitioner in Wait List No. 482 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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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 , 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 by the Respondent /Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex . M10 comprises ofboth messengerial and non - messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . 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 in conformity with the 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 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 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 , evenbefore or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take 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 /Bar 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 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 1 is illegal . Clause 1 (a ) of Ex.M1 provides an opportunityto persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , 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 inthe 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 . М 10 in this case . Those candidates under Ex . M10 were found suitable for appointrnent 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, whenMW1 has spoken about the settlements, he deposed thatsettlement 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 [ भाग II-खण्ड 3 (ii ) ]

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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 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 an award in their favour .

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 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) 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 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 tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses, the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent /Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence

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[PART II-SEC. 3(ii)]

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 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 .

length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies. The settlement entered into by the Respondent/Bank and the Federation werebona fide which were the only workable solution and 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 ofthe 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 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 of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the

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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 frefusing 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 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 this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory . " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that itwas 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 3677 Gl /07-46 7266

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[PART II SBC. 3 (ii) ]

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 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 cannotbe given to the Petitioner and, therefore , the claim is to be dismissed with costs .

5 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 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 amountto decorating a still born baby. Under these circumstances, there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATEOF 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

भारतं का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 1929

not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further, the representative for the Petitioner contended that in 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.

Further , in CDJ 2006 SC443 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 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, in2006 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 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.

Point No. 2 :

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

21. Thus, the reference is answered accordingly . K. JAYARAMAN, Presiding Officer

Witnesses Examined:-

Forthe Petitioner

WW1 Sri M. Veeramani

WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

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 régularisation 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.

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 for implementation ofEx .M1 .

24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

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01-05-91 Хегох copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

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 .

W'7 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 domessengerial work.

W911-08-89 Xerox copy of the service certificate issued by Lalgudi Branch.

11-08-98

W10

Xerox copy of the service certificate issued by Lalgudi Branch.

13-04-93

W11

Xerox copy of the service certificate issued by Lalgudi Branch .

26-04-93

W12

Xerox copy of the service certificate issued by Lalgudi Branch .

18-08-94

W13

Xerox copy of the service certificate issued by Lalgudi Branch .

04-04-97

W14

Xerox copy of the service certificate issued by Lalgudi Branch.

W15 04-04-97 Xerox copy of the service certificate issued by Lalgudi Branch .

01-06-98

W16

Xerox copy of the service certificate issued by Melachintamani Branch. 01-06-98

W17

Xerox copy of the service certificate issued by Tiruchirapalli Town Branch .

12-06-98 Xerox copy of the service certificate W18

12-06-98

issued by Kattur ADB Branch . Xerox copy of the service certificate W19

issued by Palakkarai Branch.

W20 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent /bank regarding recruitment to subordinate cadre & service conditions .

W21 Nil Xerox copy ofVol . III of Reference book on Staaff matters upto 31-12-95. 06-03-97

W22

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

06-03-97

W23

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

06-03-97

W24

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

W25 17-03-97 Xerox copy of the service particulars .J. Velmurugan .

26-03-97

W26

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

31-03-97

W27

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

Feb. 2005

W28

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

13-02-95

W29

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

09-11-92

W30

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

09-07-92

W31

Xerox copy of the minutes of Bipartite meeting.

09-07-92

W32

Xerox copy of thesettlement 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

W33

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

31-12-85

W34

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

Хегоx copy of the settlement .

16-07-88

Хегox copy of the settlement. 27-10-88

Xerox copy of the settlement .

09-01-91

Xerox copy of the settlement .

30-07-96

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

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

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

M9 10-07-99 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.

[भाग II-खण्ड 3 ( ii) ]

नई दिल्ली, 22 अगस्त , 2007

का.आ. 2651.-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 146/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था । [सं. एल-12012/413/1998- आईआर( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 22nd August, 2007 S.O. 2651. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No.146/ 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 22-8-2007 .

[No. L- 12012/413/1998 - 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. 146/2004 [Principal Labour Court CGID No154/99 ] [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 G. Dhana Ramachandaran

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Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 154/99 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. 146/2004 .

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

"Whether the demand of the workman Shri G. Dhana Ramachandaran , wait list No. 241 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 , Region- I Trichirapalli.

APPEARANCE

For the Petitioner : Sri V.S. Ekambaram, Authorised Representative .

For the Management : M/s . V. Sundar Anandan , Advocates

AWARD

1. The Central Government, Ministry of Labour, vide Order No. L- 12012/413 /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 Sri Rangam branch from 11-09-1985 . 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 ofState Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , 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 Sri Rangam 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. From11-09-1985 the Petitioner has been working as a temporary messenger and sometime performing work in other branches also . While working on temprorary basis in Sri Rangam 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 informedthe 7270

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii)] Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence, the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party tothe settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to 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 togrant relief of regular employment in Respondent/ Bank with all attendant benefits .

employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87,16-07-88,07-10-88 , 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. 241 in waitlist of Zonal 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 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies. In terms of aforesaid settlements , outof652wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 241, he was not appointed . The said settlements were bona fidewhich were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said 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 [भाग II-खण्ड 3 ( ii) ]

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भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

thereupon as temporary messenger is justified?"

(ii) "To what relief the 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 tobe 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 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 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 .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9- 1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence, the Petitioner prays that an award may be passed in his favour .

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

(1) "Whether the demand ofthe Petitioner in Wait List No. 241 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment

[PART II-SEC. 3(ii) ] 'THE GAZETTE OF INDIA: SEPTEMBER 15, 2007/BHADRA 24, 1929

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 Courthas held that Chapter V -A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe 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 . 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 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 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, butit is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras

circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite 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 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 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 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 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.

[ भाग II-खण्ड 3(ii) ] .

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भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 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 1.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 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 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 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 . 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 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

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II-SEC. 3 (ii)]

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 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 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 ofthe parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate 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.

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 isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country. Further , he relied on 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 bebinding 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 anindividual 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 andconsideration ". 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

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24 , 1929

the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order ofreference 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 disputés 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.:

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 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 INDIAwhereinthe Supreme Court has held that " candidates included in merit list has nó 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 Petitiorer 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;

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[PART II-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 .

(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 a judicious one . From this, the impugned directions must be held to be totally untenable and unsustainables . " 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 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 sanctionedvacancy, 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 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

permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period ofprobation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR VS. SURINDER KUMAR, the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH 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 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 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 thepreparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

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भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

entered intobetween 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.

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 , 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

WW1 Sri S. Dhanaramachandaran WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj 7278

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

Documents Marked :-

[PART II SEC. 3(ii) ]

W17 26-03-97

Ex. No. Date

Description

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

W18 31-03-97

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

W2 20-04-88 Хегоx copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1.

Xerox copy of the appointment order to SriG. Pandi.

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W20 13-02-95

24-04-91 Хегox copy of the circular of Respondent /Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Хегоx copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

W5 20-08-91 Xeгox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Хегох copy of the circular letter of Zonal Office , Chennai About filling up of vacancies of messenger posts .

W7 25-03-97 Хегоx 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 Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

09-11-92

W21

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

09-07-92

W22

Xerox copy of the minutes of Bipartite meeting .

09-07-92

W23

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

07-02-06

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

W9 1985-97 Xerox copy of the service particulars of petitioner issued By Sri Rangam branch Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management :-

Ex. No. Date

W10 07-06-97 Xerox copy of the service certificate issued by Sri Rangam branch W11 Nil

Description

Xerox copy of the settlement .

17-11-87

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

27-10-88

M3

Xerox copy of the settlement .

9-01-91

M4

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 ofVol . III of Referencebook onStaff matters upto 31-12-95. 06-03-97

W13

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

06-03-97

W14

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

W15 06-03-97 Xerox copy of the call letter from Maduri zonal office for interview of messenger post-J . Velmurugan .

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

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 of the 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) ]

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भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24 , 1929

नई दिल्ली, 22 अगस्त, 2007

Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 141/99 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. 143/2004.

का.आ. 2652, 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 143/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 22-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/415/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 22ndAugust, 2007

"Whether the demand of the workman Shri S. Rajappa wait list No. 372 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. 2652. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 143/ 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 22-8-2007.

[No. I - 12012/415/1998 - 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. 143/2004

[Principal Labour Court CGID No. 141/99]

[Inthe matter ofthe dispute for adjudiation under clause (d) of sub - section ( 1 ) and sub -section 2(A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

Sri S. Rajappa

: I 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 .

: Mr. K. S. Sundar

For the Management Advocates

AWARD

1..The Central Government, Ministry of Labour , vide Order No. L- 12012/415 /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 Villupuram Main branch from08.04.1982 . The Petitioner was orally informed that his services were no more required. The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in 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 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 Villupruam 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 08-04-1982 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Villupuram 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 31-3-97 that his services are not required [PART II-SEC. 3 (ii) ] 7280

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any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to the Respondent /Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party tothe settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to 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 towork 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 17-11-87,16-07-88, 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. Interms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 372 in waitlist 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 Pétitioner 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent yacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 372, 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 thatdocuments and identity of Petitioner was verified before the Petitioner was engaged .

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

(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 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 . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation 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 :--

(1) " Whether the demand of the Petitioner in Wait List No. 372 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 15 , 2007/BHADRA 24, 1929

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 ismarked 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 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 ofEx . M.10 namely wait list is not inconformity withthe instructions of Ex.M2 and non - preparation ofseparate 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 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 engaged in leave vacancy was used as a device to take 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 obnly ofr 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 timeto time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex. Ml and the averments of 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 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 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 casualsto 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 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 . 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 [ भाग II-खण्ड 3 ( ii ) ]

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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 producedby 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 .

them out of the principal clause 2 ( 00) of the I.D. Act , 1947 . Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as ' badlies ', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex. 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) ofEx . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in modulé 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 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 setflement 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 nơr 12 (3 ) settlement as claimed by the Respondent/Bank which says only with regardto modification of Ex. Ml to M4 made in terms of Ex . M6. Though the Respondent/ Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased 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

7284

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 goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject- matter of yet another industrial dispute which an appropriate 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.

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA. HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAMwherein the Kerala High Court has held that "mere wording ofreference is not decisive in the matter oftenability ofa reference. Even though the Tribunal cannot go beyond the order of reference, if points ofdifference 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 length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence 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 ofthe 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 andconsideration. " 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 conciliationproceedings under Section 18(3). A settlement ofthe 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 7285

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[ भाग II-खण्ड 3 ( ii) ]

again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits. " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the ruiings 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 afair 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.

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 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 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 panei for permanent absorption in the services of the bank. Whatever conditional right they had cometo an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was 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 piead 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. Thedirection has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ 7286

[PART II-SEC. 3(ii)] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007 /BHADRA 24, 1929

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 stretchedto such an extent as to cover these employees . Since they are. only daily wage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 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 .

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 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 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

7287

भारत का राजपत्र : सितम्बर 15 , 2007/भाद्र 24 , 1929

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 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 .

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.

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 atime beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further , in CDJ 2006 SC443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. 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 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 ."

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 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 .

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

21. Thus , the reference is answered accordingly. K. JAYARAMAN, Presiding Officer 7288

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

Witnesses Examined :-

For the Petitioner WW1 Sri S. Rajappa 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 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 Хегоx 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 27.07.82 Xerox copy of the service certificate issued by Villupuram Main branch.

W10 08.08.84 Xerox copy of the service certificate issued by Villupuram Main branch .

W11 Nil Xerox copy of the service certificate issued by Villupuram Main branch .

W12 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W13 Nil Xerox copy of Vol . III of Referencebook onStaaffmatters upto 31-12-95. 06-03-97

W14

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

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of messenger post-K. Subburaj .

W16 06-03-97 Xerox copy of the call letter from Maduri zonal office for interview of messenger post---J. Velmurugan.

[PART II-SEC. 3( ii)]

W17 17-03-97 Xerox copy of the service particulars - J. Velmurugan.

W18 26-03-97 Xerox copy of the letter advising selection ofpart time Menial---G . Pandi .

W19 31-03-97 Xerox copy of the appointment order to Sri G. Pandi.

W20 Feb. 2005 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 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 Head office circular No. 28 regarding Norms for sancțion of messenger staff.

W23 09-07-92 Xerox copy of the minutes of Bipartite meeting.

W24 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.

W25 07-02-06 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

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 9-01-91 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 of the order of Supreme 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-खंड 3 (ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

नई दिल्ली, 22 अगस्त, 2007

का. आ. 2653.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार रिजर्व बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, नागपुर के पंचाट ( संदर्भ संख्या 65/2000 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था । [सं. एल-12011/46/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 22nd August , 2007 S. O. 2653. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 65 / 2000) of the Central Government Industrial Tribunal, Nagpur as shown in the Annexure , in the Industrial Dispute between the management of Reserve Bank of India and their workmen, which was received by the Central Government on 21-8-2007.

[No. L- 12011/46/ 1998 - IR (B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

BEFORE SHRI A.N. YADAV PRESIDING OFFICER, CGIT-CUM -LABOUR COURT, NAGPUR Case No. CGIT/NGP/65/2000

Date : 14-08-2007

Petitioner The Secretary, Reserve Bank Employees Association , B.M.S. Office , Mandir Marg, Sitabuldi , Nagpur-440012 .

....Party No. 1

Versus

Respondent : The General Manager, Reserve Bank of India, Nagpur -440001 .... Party No. 2

AWARD

[Dated: 14th August , 2007 ]

The Central Government after satisfying the existence ofdisputes between The Secretary, Reserve Bank Employees Association , B.M.S. Office , Nagpur, Party No. 1 and The General Manager, Reserve Bank of India , Nagpur Party No. 2 referred the same for adjudication to this Tribunal vide its Letter No. L- 12011/46/98 - IR[B - I] Dt . 04-05-1999 under clause (d) of Sub -section ( 1 ) and Sub- section (2A) of Section 10 of Industrial Disputes Act, 1947 [14 of 1947] with the following schedule :-

(1 ) " Whether the action of the Chief General Manager, Reserve Bank of India, Nagpur over the issue of arbitrary change in the conditions ofservice in regard to DETOs w.e.f. 01-10-95, is legal and justified ? If not , to what relief the said workman is entitled and from what date ?" 3677 Gl/ 07-49

7289 (2) Consequent upon the notice of this Tribunal , issued on receipt of above order to it, the petitioner filed their Statement of Claim . Accordingto it the management Reserve Bank of India started automation and computerization of its various activities in phased manner in its departments like Accounts Section , Issue Department , Deposit Accounts and Debt Accounts etc. by installing 30. Data Entry Terminals. Ithas for those 30 terminals engaged 30 terminal operators and also created a pool of 15 more operators for smooth running of the work even during the leave and absence etc. of the above 30 operators. They were selected after the aptitude test and the interviews. It is also contended that their terms and conditions of the service are determined under the Bank Office Circular, Gen. No. 70/83-84 dt . 31-01-1984 as per Annexure -A appended with the Claim Petition. Further it is also contended that they were selected after eligibility screening test, interview etc. and thus the management has created special class of these employees amongst the class - III cadres .A special pay ofRs . 275 (as revised from time to time) was payable to them prorate basis asper contract of service between the workman and the respondent bank. Similarly their services were non -transferable in normal rotation of the Bank and thus the arrangement and the work was continuing satisfactorily from 1984.

(3) The Bank without assigning any reason and without giving any notice either to the union or to the concerned workman , decided on 15-07- 1995 to withdraw their special pay and allowances to which they are entitled. It has become the service condition of those employees and consequently withdrawal of a special pay and allowances ofData Entry Terminal Operator amounts to a change in the service condition within the meaning of schedule - 4 of Industrial Dispute Act, 1947. Since the management Bank has not followed the legal provision under section 9 -A read with rule 34, Part - V ofIndustrial Dispute Central Rule, 1957. The arbitrary and unilateral change in service conditions is illegal and void in - ab initio . By this change two members of the petitioner's union namely S.R. Deo and N.S. Bond are affected. They were getting allowances upto 29-09-1995 and deprived from it w.e.f. 01-10-1995 though they are continued to work on the terminals . Their juniors receive a special pay thus it has created anomaly in their pay.

(4) Further it is also contended that the contention ofthe management of introducing a change by it was a sequel to the agreement signed by the Bank with the rival union AIRBEA (All India Reserve Bank Employees Association ) is a calculated endeavor to mislead. The union has challenged it on two counts that there was no 7290

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007 /BHADRA 24, 1929

such agreement and it is not binding on the applicant union in the terms of Section 18 (3 ) of the Industrial Dispute Act as it was not partyto it . It is private agreement with the rival union and cannot be implemented . By the action of the management the service condition of above named two terminal operators are affected making them ridiculous to continue to work without the special pay and allowances . It is the duty of the management to honor their service conditions and according to it the action is illegal. Consequently it has prayed to quash the order of the management Dt. 15-07-1995 and direct it to continue the special pay as earlier.

(5) Management by filing its Written Statement resisted the claim of the petitioner. Having denied all the contentions and the demands in this respect, the management contended that it has started automation and computerization in a phased manner in the department of the Bank. According to it the service conditions of the R.B.I. employees are governed by the condition laid down in Reserve Bank ( Staff Regulation, 1948) . It was necessary to introduce a computerization considering the development and the globalization of economy with a viewto improve the productivity and efficiency. It was opposed by the employees and Trade Union was making difficult to introduce a computerization . In this background in July, 1984 in order to promote the computerization in the Bank, it was considered necessary to grant a special pay by way of functional allowance to theData Entry Terminal Operators . The special paywas started initially Rs . 40 p.m. and it was revised from time to time and at the relevant time itwas Rs . 275. Since 1990 the Bank stipulated the condition for recruitment of the Clerks Grade- II/one-Group- II that the selected candidates will have to perform the data entry operations on all the terminals as when require . In order to train the employees on the computer, it was necessary to rotate them after two to three years . Therefore the services of all the Clerks including DETOS are transferable . They are the common cadre employees , legible for promotion to Clerk Grade- I/CNI Grade-I.

(6) The management enter into bilateral settlement on 20-07-1994 with All India Reserve Bank Employees Association , a recognized trade union of Class - III employees of Reserve Bank of India with a view to improve the technology which was facilitating the functioning of the bank while discharging the duties effectively and efficiently. The recognized and majority union of the Bank has agreed to withdraw the special pay which was given to the terminal operators . In addition to it the Bank has also discussed the matter with the representative of All India Reserve Bank Employees Association

[PART II-SEC. 3 (ii) ] and their representatives also consented in lieu ofgrant of one advanced increment . Now it is conditionof their service, to work on computer terminals; ledger posting machines should be given one advanced increment . It was also considered that those who were getting a special allowance should be continued upto 17-09-95 and there after should be withdrawn in case of posting of new incumbents . Similarly the employees posted after 17-09-95 will not bepaid any special pay. In view of grant of one advance , increment up gradation allowance the DETOS arenot entitled for the special pay. Finely it has prayed to answer the reference in the negative .

(7) In order to the respective contentions the union has examined the witness S.R. Deo . He has stated vividly what is mentioned in the statement ofthe claim . However in the cross - examination he admitted that in 1995 one additional increment was given to all the employees working on the computer.He also admits that he is not working since 23-3-2000 as he has been transferred to cashdepartment .

(8) Similar facts are stated by another witness Nilay Band who was operating as DETO . He has admitted that the persons who were working on the computer as DETO. Were getting the special allowance. At present he is not working as DETO . He has also admitted that one advance increment was given to all the employees .

(9) On behalfof the management Assistant General Manager is examined he has reproduced the statement ofclaim of management and remained unshaken in the cross - examination . The crucial points which arise for my consideration are as- (a) whether granting a special pay to DETO and enlisting a panel of the persons for working on the computers will amounting to creation of special cadre of the clerks ? (b ) Whether such special pay would be service condition and consequently its stoppage would amount to change in service conditions ?,

(10) Firstly let us see in what circumstances and in what manner the special pay of the DETO has been granted and stopped . Un-disputedly it was granted in the initial stage of the introducing a computerization in the working ofthe bank with a view to attract the workers to work on the computers. In the year 1995 the management made it compulsory to have knowledge of the working on the computer and qualification for recruiting the clerks grade II . All the clerks were expected to work on the computers . It does not remain a special work attracting need ofgranting special pay. There for the management after granting one increment to all the workers and entering into the settlement with the recognized majority Union of the Clerks , special pay which was earlier granted to the DETO was stopped .

7291 [भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

प्रविष्टि13 के अन्तर्गत निर्दिष्ट किया गया है , उक्त अधिनियम के प्रयोजनों के लिए लोक उपयोगी सेवाएं घोषित किया जाना चाहिए ।

अतः अब, औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14) की धारा 2 के खण्ड ( ढ़ ) के उप- खण्ड (6 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्रीय सरकार उक्त उद्योग को उक्त अधिनयम के प्रयोजनों के लिए तत्काल प्रभाव से छः मास की कालावधि के लिए लोक उपयोगी सेवा घोषित करती है ।

(11) No doubt in the cross examinations he has stated that special pay is included in salary but itdoesn't mean that a workman who has been granted special pay for particular work would be entitled for it despite ofthe work taken out from him. After all it is paid for particular work like incentives to create the interest and attract the workers , which was necessary in the initial stage . His evidence shows that it was paid to the workman till he works on computers as DETO and it was not affecting the pensionary benefits.

[फा. सं. एस-11017/11/97- आई . आर. ( पी.एल. ) ] गुरजोत कौर, संयुक्त सचिव

New Delhi , the 24th August, 2007 (12) Much has been argued on behalf of the petitioner about the circular dated 15th July, 1995 under which the special pay of the clerks/coin examiners working on the Machines i.e. (Computers) was stopped but I don't think that was wrong in the existing circumstances and settlement.

S. O. 2654. Whereas the Central Government is. satisfied that the public interest requires that the services in the Copper Mining Industry which is covered by item 13 of the First Schedule to the Industrial Disputes Act , 1947 (14 of 1947) , should be declared to be a Public Utility Service for the purposes of the said Act .

Now, therefore, in exercise of the powers conferred by sub -clause (vi ) of clause ( n) of Section 2 of the Industrial Disputes Act , 1947 , the Central Government hereby declares with immediate effect the said industry to be a Public Utility Service for the purpose of the said Act for a period of six months .

[No. S- 11017 /11 /97- IR (PL) ] GURJOT KAUR,Jt . Secy.

नई दिल्ली, 22 अगस्त, 2007

का. आ. 2655.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार रिजर्व बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोज़कों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , नागपुर के पंचाट ( संदर्भ संख्या 87/2000 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 21-8-2007 को प्राप्त हुआ था ।

[सं. एल-12011/66/1999- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 22nd August, 2007 (13) Now turning to another aspect as to whether it has created special cadre and there is a change of service conditions , the circular dated 31 January, 1984 is important to throw a light on it . The circular shows the applications from the Clerks Grade II/ coin note examiners were called by the management but the aptitude test was to be taken by the supplier of the equipments i.e. terminals , processors etc. It means the supplier was explaining as to how computers should be handled while working on it . No doubt the special pay was to be paid but there is noting to infer that it was payable irrespective whether they work on computers or not. On the contrary the evidence shows that special pay was stopped of the workers who were transferred from the computer section. It seems that the DETO were transferable. The submissions of the petitioner that their post was non transferable can be accepted because the form itself indicates that they were asked to give bonds for not asking transfer for at least 2 years. It means their posts were transferable by the management or on their requests . There is nothing to conclude that special cadre was created and there is any change in service conditions attracting the Provisions of Sec . 9 ( a) ofI.D. Act . In the result there is neither formation of new cadre nor in change in the service condition . Consequently the petitioner is not entitled to any relief as claim by it . Hence I answer the reference in negative inthisAward.

Dated: 14-08-2007 A.N. YADAV, PresidingOfficer

नई दिल्ली, 24 अगस्त, 2007

S. O. 2655. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 87/ 2000 ) of the Central Government Industrial Tribunal , Nagpur as shown in the Annexure , in the Industrial Dispute between the management of Reserve Bank of India and their workmen , which was received by the Central Government on 21-8-2007.

का. आ. 2654.- केन्द्रीय सरकार संतुष्ट है कि लोकहित में ऐसा अपेक्षित है कि ताम्बा खनन उद्योंग में सेवाओं को जिसे औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की प्रथम अनुसूची की

[No. L - 12011/66/ 1999 -IR (B - I ) ] AJAY KUMAR, Desk Officer THE GAZETTE OF INDIA : SEPTEMBER 15, 2007 /BHADRA 24, 1929

7292

ANNEXURE

BEFORE SHRI A. N. YADAV PRESIDING OFFICER, CGIT-CUM- LABOUR COURT, NAGPUR Case No. CGIT/NGP/87/2000

Date : 14-08-2007

PRESENT

Petitioner : The Secretary, Reserve Bank of India Employees Association, (Regd. No. NGP/203) , C/o Reserve Bank of India , Nagpur-440001. ....Party No. 1

Versus

Respondent : The Regional Director, Reserve Bank of India, Nagpur -440001. .... Party No. 2

AWARD

[Dated: 14th August, 2007]

The Central Government after satisfying the existence of disputes between The Secretary, Reserve Bank of India Employees Association, Party No. 1 and The Regional Director, Reserve Bank of India, Nagpur Party No. 2 referred the same for adjudication to this Tribunal vide its Letter No. L - 12011/66/99 - IR (B -I) dt . 24-3-2000 under clause (d) of sub Section ( 1 ) and sub Section (2A) of Section 10 of Industrial Disputes Act , 1947 ( 14 of 1947 ) with the following schedule :

(1) "Whether the action of the Regional Director forMaharashtra , Reserve Bank of India , Nagpur, over the issue of arbitrary change in the conditions of service in regard to DETO's ( Shri N.G. Tekam and 4 others ) by way of Transfer order dated 17-8-1999 and to deprive them from Spl. Allowances w.e.f. 19-8-1999 is legal and justified ? If not, what relief the said workmen are entitled to and from which date ?" (2) Consequent upon the notice of this Tribunal , issued on receipt of above order to it, the petitioner filed their Statement of Claim. According to it the management Reserve Bank ofIndia started automation and computerization of its various activities in phased manner in its departments like Accounts Section, Issue Department, Deposit Accounts and Debt Accounts etc. by installing 30 Data Entry Terminals. It has for those 30 terminals engaged 30 terminal operators and also created a pool of 15 more operators for smooth running of the work even during the leave and absence etc. of the above 30 operators . They were selected after the aptitude test and the interviews . It is also contended that their terms and conditions of the service are determined under the Bank Office Circular, Gen. No. 70/83-84 dt . 31-1-1984. Further it is also contended that they were selected after

[PART II-SEC . 3 (ii)] eligibility screening test, interview etc. and thus the management has created special class of these employees amongst the class - III cadres , Aspecial pay ofRs. 275 (as revised from time to time) was payable to them on pro rata basis as per contract of service between the workman and the respondent bank. Similarly their services were non transferable in normal rotation of the Bank and thus the arrangement and the work was continuing satisfactorily from 1984.

(3) The grivance ofthe petitioner is that as per above circular inview of the creation ofthe new cadre , the management is not entitled to transfer him from the panel ofDETOs and depriving him from the special pay by an order dt. 17-8-1999. He has prayed to direct the management R.B.I. to withdraw its above order of transfer and direct it to continue the special pay.

(4) Management by filing its Written Statement resisted the claim ofthe petitioner. Having denied all the contentions and the demands in this respect, the management contended that it has started automation and computerization in a phased manner in the department of the Bank. According to it the service conditions of the R.B.I. employees are governed by the condition laid down in Reserve Bank ( Staff Regulation , 1948) . It was necessary to introduce a computerization considering the development andthe globalization ofeconomy with a view to improve the productivity and efficiency. It was opposed by the employees and Trade Union was making difficult to introduce a computerization. In this background in July, 1984 in order to promote the computerization in the Bank, it was considered necessary to grant a special pay by way of functional allowance to theDataEntry Terminal Operators . The special paywas started initially Rs . 40 p.m. and it was revised from time to time and at the relevant time it was Rs . 275. Since 1990 the Bank stipulated the condition for recruitment of the Clerks Grade- II /one-Group - II that the selected candidates will have to perform the data entry operations on all the terminals as and when required. In order to train the employees on the computer, it was necessary to rotate them after two to three years . Therefore the services ofall the Clerks including DETOs are transferable. They are the common cadre employees , legible forpromotion to Clerk Grade- I/CNI Grade-I .

(5) The management entered into bilateral settlement on 20-07-1994 with All India Reserve Bank Employees Association, a recognized trade union of Class - III employees of Reserve Bank of India with a view to improve the technology which was facilitating the functioning of the bank while discharging the duties effectively and efficiently. The recognized and majority [भाग II-खंड 3 ( ii) ]

7293

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

management can notbe denied either by creating a new panel or by granting a special pay.

union of the Bank has agreed to withdraw the special pay which was given to the terminal operators . In addition to it the Bank has also discussed the matter with the representative of All IndiaReserve Bank Employees Association and their representatives also consented in lieu of grant of one advanced increment. Now it is condition of their service , to work on computer terminals; ledger posting machines should be given one advanced increment. It was also considered that those who were getting a special allowance should be continued upto 17-09-95 and thereafter should be withdrawn in case of posting of new incumbents . Similarly the employees posted after 17-09-95 will not bepaid any special pay. In view of grant of one advance increment up gradation allowance the DETOS are not entitled for the special pay. Finally it has prayed to answer the reference in the negative.

(8) Similarly a special pay was paid for the work done on taking entries on the terminals . This cannotbe a service conditions . It being a special pay for the particular work wouldbe entitled to the workers who is doing that particular work. If thatwork is taken out from him due to the transfer or some other reasons , definitely he would not be entitled for the special pay. In such circumstances in my opinion there is nothing to conclude that special cadre was created and there is any change in service conditions attracting the Provisions of Sec . 9 (a) of I.D. Act. In the result there is neither formation of new cadre nor in change in the service condition. Consequently the petitioner is not entitled to any relief as claim by it. Hence I answer the reference in negative in this Award.

Dated: 14-8-07 : A.N. YADAV, PresidingOfficer

नई दिल्ली, 23 अगस्त, 2007 (6) Thus the main disputes are whether a new cadre has been created by the management by preparing a list or panel of the workers for working as a DETOS . Whether it has become a service condition and consequently whether there is a change in the service condition due to the stoppage of special pay and transfer of the petitioner.

का. आ. 2656.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडियाके प्रबंधतंत्रके सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 272/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/494/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्कअधिकारी

NewDelhi , the 23rd August, 2007

S. O. 2656. In pursuance of Section 17 of the Industrial. Disputes Act , 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 272/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court , Chennai as shown in the Annexure, in the Industrial Dispute between the management of State Bank of India and their workmen, which was received by the CentralGovernment on 23-8-2007 .

[No. L- 12012/494/ 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

(7) While deciding the reference bearing No. CGIT/ NGP/ 65/2000 between the same parties , I have already concluded that neither preparing list of the workers for working as a DETOS nor allowing special pay will amount to creation of new cadre or amount to form new service conditions. In this petition the petitioner is challenging the stoppage of payment of special pay is illegal and his transfer from the panel under a orderdt . 17-08-1999 is also a illegal being change in service conditions . However as decided in earlier above mentioned reference the circulardt. 31-01-1984 assumes a great importance. No doubt a list was prepared of the workers for working on a Data Entry Terminal after taking interviews and calling the applications in a prescribed form was only with the view to promote the computerization. Special Pay was allowed or paid to promote the interest inthe workers for working on the computers in the initial stage of its installation. This can not be a creation of a new cadre and can not be a new service conditions for the person working as a DETO even the prescribed form shows that theworkers included in the panel of DETOs will not apply for a transfer from the terminals at least for two years . Subsequently the workers werealso entitled for asking the transfer and the management had never ceased its right of transfer. The transfer of the employee is the right of the management and the events incidental to the service conditions . On the administrative ground right to transfer of the

K.Jayaraman, Presiding Officer [PART II - SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

7294

INDUSTRIAL DISPUTE NO . 272/2004

(Principal Labour Court CGID No. 216/99)

[In the matter of the dispute for adjudication under clause (d) of Sub -section ( 1 ) and Sub - section 2(A) of Section 10 ofthe Industrial Disputes Act , 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen]

BETWEEN

SriE. Devan

: I Party/Petitioner

AND

The Assistant General : II Party/Management

Manager,

StateBank of India , Zonal Office, Chennai .

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative

For the Management : M/ s . K. S. Sundar, Advocates

AWARD

The Central Government , Ministry ofLabour vide Order No. L- 12012 /494/98 - IR(B - I) dated 10-3-1999 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. 216/99 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. 272/2004 .

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

"Whether the demand of the workman Shri E. Devan, wait list No. 721 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ?"

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

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 andAll India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, В and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager ofthe Ponneri branch. He was called for an interview by a Committee appointed by Respondent/ Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee. From 8-5-86, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Ponneri branch, another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence, the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 andto regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated 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 and 25H ofthe I. D. Act. The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre in StateBank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Ponneri branch from 8-5-1986. 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 [ भाग II-खंड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

7295 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 orby directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered. As per Clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extendedupto 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listed at 715 , he was not appointed. The said settlements were bona fide which were the only workable solution and isbinding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the waited list oftemporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment ofdaily wages/ casual labour. Further, for circle of Chennai wait list ofdaily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees , 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.

7296

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.

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 listedworkmenwith ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other thanwait listed workmen according to theirwhims 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 ofclass IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before theHigh 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. 721 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1 :

'A, B and C' is quite opposed to the doctrine of 'last come- first go ' or ' first come -last go ' and therefore, the categorization in Clause 1 is illegal. Clause 1 (a ) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers, farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging 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 Courtto protect the legal and constitutional rights of the workmen concernedandwhile the matter was pending in Writ Petition No. 542 (civil) 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time offinal hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been 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 7297 [भाग II-खंड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copyofwhich ismarked as Ex. W8 . Further, the appointment on daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex. MI , M3 andM4 respectively. But , when MWI has spoken about the settlements, he deposed that settlement dated 27-10-88 was not included. inthe Madras circle since the High Court order is there , but he has not produced any document in support of the so called non - inclusion except his bald statement . Further, according to 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 hasheld in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as perBipartite Settlement while the 1988 settlement dealt with 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 combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex. M10 comprises of both messengerial and non - messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore, both belong to two different and distinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex. M10 namely wait list is not in conformity with the instructions of Ex . M2 and non-

preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/ published even after the Court order in WMPNo. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all, Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(00) 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 to show how he was arrived at the seniority and tilldate, 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 ofMW1 . Therefore , the termination ofthe 3677 GI/07-50 7298

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

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 I. D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length ofhis engagement and could not be absorbed as he 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 anyunion and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench 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 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 modifications 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 and W. P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further, though the Respondent/Management has examined two witnesses, the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. Ml to M5. Above all , though the Respondent/Bank has referred to voluntary retirement scheme, in the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 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 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 [भाग II- खंड 3 ( ii ) ]

7299

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

settlement. " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.C.P.Ltd . Vs. PresidingOfficer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

13. I find some force in the contention of the representative for the Petitioner. Therefore , I find this Tribunal is entitled to go into the question whether the 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/ [PART II-SEC. 3 (ii) ] 7300

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24 , 1929

Bank, I find the Petitioner is not entitled to question the settlement .

to the existence of a vacancy. The direction in effect means that every ad hoc /temporary employee who has been continued for one year should be regularised even though (a) novacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby aback door ; (c) he was not eligible and qualified for the post at the time of his appointment; ( d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for regular post . Such a 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 itselfwas 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 , remaineda 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 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 ofappointment in Govt. service in an existing or a future vacancy. In that case, pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments 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 oftheir names in the pariel 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. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those adhoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference 7301 [भाग II-खंड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of last come-- first go ' is not mandatory but only directory, onsufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence thathis juniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and therefore, the claim is to be dismissed with costs .

the original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further, in CDJ 2006 SC 443 National Fertilizers Ltd, and Others Vs. Somvir Singh , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation ofan employee upon the expiry ofpurported period 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 ofthe Respondent was not in sanctioned post . Being a ' State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law." Further , in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandeywherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right uponhim tobe regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

16. Relying on all these decision , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation ofhis service . Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the 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.

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 15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 Secretary, State ofKarnataka Vs. Uma Devi , the Supreme Court has held that "merely because a temporary employee or a casual wageworker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength 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 laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if THE GAZETTE OF INDIA : SEPTEMBER 15 , -2007/BHADRA 24, 1929

7302

[PART II-SEC. 3 ( ii) ]

Ex. No. Date

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 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.

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 ondaily wages based on Ex. W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy ofthe circular letter ofZonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

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 06-02-87 Xerox copy of the service certificate issued by Ponneri branch.

W10 Nil

Point No. 2 : The next point to be decided in this case is to what relief the Petitioner is entitled ?

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

W1l Nil

20. In view of my foregoing findings that the petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him. No costs .

21. Thus , the reference is answered accordingly. (Dictated to the P.A. , transcribed and typed by him, corrected and pronounced by me in the open court on this day the 3 1st January, 2007. )

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WWI Sri E. Devan

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

Ex. No. Date

Description

WI 01-08-88 Хегох 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 .Ml .

Xeroxcopyofthe Vol . III Reference book onstaff matters 31-12-95.

W12 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

W13 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W14 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

W15 17-03-97 Xerox copy of the service particulars- J.Velmurugan .

W16 26-03-97 Xerox copy of the letter advising selectionofpart time Menial-G. Pandi .

W17 31-03-97 Xerox copy of the appointment orderto SriG. Pandi .

W18 Feb. 2005 Xerox copy of the pay slip of T. Sekar for themonth of February, 2005 wait list No. 395 ofMadurai Circle.

W19 13-02-95 Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel of wait list .

[भाग II-खंड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

7303 Ex. No. Date

Description

New Delhi , the 23rd August, 2007 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 of the minutes of the Bipartite meeting.

S. O. 2657. In pursuance of Section 17 of the Industrial Disputes Act , 1947 (14 of 1947 ), the Central Government hereby publishes the Award (Ref. No. 271 / 2004) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007 .

W22 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants.

[No.: L- 12012/493/ 1998- IR (B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

W23 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

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

Wednesday, the 31st January, 2007 W24 31-12-85 Xerox copy of the local Head Office circular about appointment oftemporary employees in subordinate cadre.

PRESENT

For the Respondent/Management :

K. Jayaraman , Presiding Officer

Ex. No. Date

Description

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

INDUSTRIAL DISPUTE NΝΟ . 271/2004 (Principal Labour Court CGID No. 215/99) 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 Xerox copy of the settlement .

[In the matter of the dispute for adjudication under clause (d) of Sub-section ( 1 ) and Sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947), between the Management of State Bank of India and their workmen]

BETWEEN

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

Sri R.Rajasekaran

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

AND

The Assistant General : II Party/Management M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

Manager, State Bank of India , Z.O. Chennai .

M9 10-07-99 Xerox copy ofthe order of Supreme Court in SLP No. 3082/99 .

M10 Nil

APPEARANCE

Xerox copy of the wait list of Chennai Module.

For the Petitioner : Sri V. S. Ekambaram, Authorised Representative MI1 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99.

For theManagement : M/ s . K.S. Sundar , Advocates

AWARD

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2657.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 27.1 /2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/493/1998- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

The Central Government, Ministry of Labour vide Order No. L - 12012/493 /98 - IR(B - I) dated 10-3-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 215/99 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. 271/2004.

[PART II-SEC. 3 (ii)] 7304

THE GAZETTE OF INDIA: SEPTEMBER 15, 2007/BHADRA 24, 1929 .

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

"Whether the demand of the workman Shri R. Rajasekaran, wait list No. 367 for restoring the wait list oftemporary messengers in the establishment of StateBank of India and consequential appointment thereupon as temporary messenger is-justified ? If so, to what relief the said workman is entitled ?"

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

made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number 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 and 25H of the I. D. Act. The termination ofthe Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been list has 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:

АО ЭНТ

भारत को राजपत्र: सिंतम्बर 15, 2007/ भाद्र 24, 1929

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 forthe appomilhent of temporary employees. After the expiry ofwait list thePentioner has no claim for permanent absorptions Hence, for all these reasons, the Respondent prays to dismiss the lain with costs PRE Brodtis betraimist stow astmqaih batoomoo 2

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 ons robo darbuogeal sdt af

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all thể 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 WritPetition 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 di costo od or tovushнограй

7 In these circumstances , the points for my consideration areThanh lon toob auch 045 và subven

Whether the demand of the Petitioner in Wait d) List No. 367 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as anartemporary messenger is justified

val svetnego kontol bekenisa od of aldigilo onehas (ii) "Towhat relief the Petitioner is entitled ?

PointNo: 140d0boss2 2.27 sibalno das lens

gidbevorg A. Q.No.A -V 193ged redt blod zed noo

108L 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 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 waswaitlisted as candidate No. 368didate No. 368 in waitlist of Zonal Office, Chennar . So far 357 wait listed temporary candidates, out of 744 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger. 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 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 aggregatetemporary service in any continuous block of36 calendar months were to be considered. As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extendedupto 31-3-97 for filling up vacancies which were to arise upto 31-12-94) The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regulár 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 368, 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 liableto be rejected. Further, the said settlements we're 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 Workinen) 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 Pétitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger: As per settlements , vacancies upto 31-12-94were filled up against the waited list of temporary employees and vacancies for 1995-96 has to 1to be filled up against the wait list drawn for appointment of daily wages/

3677G1/07-51 7306

THE GAZETTE OF INDIA SEPTEMBER 15, 2007/BHADRA 24 , 1929.

[PARD SECX 3 (ii)) 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 cmployees 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 ofthe workmen concernedandwhile the matter was pending in Writ Petition No. 542 (Civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of fimal 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 thể 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 atid 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 retrenchinient as unjusi and illegal and they further prayed for reinstatement with back wages and other attendam etti . On behalf of the Petitioner, it is contended thất thicsePetitioners 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 aLin any cases the Petitioner is not bound by settlement under Section 1801) entered into between the alleged Federation and the Bespondent/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, theyhave 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 , Tiefice 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 LP Act and it is preposterous to contend that the Petitionershas no valid and enforceable, right for appointment , as, Sections 25 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 and FC 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 25Fapplies but for all basesof

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 Retitioner that Ex. W2 W3 and W& 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 MW and MW2 andtheir testimonies during thecross 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 Mil deals with categorization of retrenched temporary employees into A Band Giobut this categorization of AB and Gois quite opposed to the doctrine ofpedastlast come first go or first come last go and therefore, the categorization in Clause l is illegal, Clausel (8) ofEx/ MI provides an opportunity to persons who were engaged on casual-basisand allowed tosand allowed to work in leave/ casual vacancies ofmessengers, farashes , cash coolies, waterboys, sweepers ete for absorptionalong with the other eligiblecategories ofitemporary employees is not validu Eurther, engaging casuals todo messengerial work is in contraventionof the guidelines,mentionedin Referenice Book on Staff matters ; copy ofwhichismarkedas Ex! W8 Further, the appointment on daily wage basis for regular messengerial jobs.etcare strictly prohibited as perbank's circulars/instructions. In such circumstances, the absorption ofcasuals along with the eligible categories is not valid, Therefore, thesepersons who were engaged by the Respondent/Bankou casual basis should not be given perinanent 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 ExW2 four types of waiting lists have tobo prepared,But the Respondent/Bank has alleged to have preparedonly one wait list for each module asaspper Ex ML0 in this case. Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers Even MWA is unable to sayas to when the wait list Ex. M10 was prepared, but itis mentioned in Ex: M10 that it was prepared based on the settlement dated 17-11-87, 27-10.88 and 2-1-91which are markedas Ex: M1 , M3 and M4 respectively But when MWh.bas spoken about the settlements,he deposed that settlement dated 27-10-88 was not included in the Madras cirole since the High Court order is there ,but he has not produced anty document in support of the so called non-inclusion except his bald statement Further) according to MW1.walt list under Ex M10 was prepared on2-5-92 but there is nopleading inthe Counter Statement with regardtothis wait list. Further the Hon'ble High Court hasheldinsits onderdated 23-7-99 in W: P.No 7872bf1991 which is markedag an exhibit in which itas stated that it is clear that the 1987 settlement was concerned with the temporary class BV employees who were paid scalewages asper Bipartite sicttlement whitether1988 settlement dealt with daily wager in Class IV. category who were paidwages Fotrencament Therefore, the application of Section 254 7807 [ শাগ खंड (11)]

भारत की सितम्बर 15, 2007 / भाद/24, 19290 ATTESAD IHT

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 44 of Constitution of India Fuither , the averment of MWI and the statements in Counter Statement arél contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combining equals with unequals. It is further contended on behalf ofthe Petitioner! that as për 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 and distinct categories: But, Ex. M3 provides for the same Horms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative of Articles 14 and 16 ofConstitution of India. Therefore, the Petitioner! contended that preparation ofEx/ M10 namely wait list is not inconformity with the instructions ofEx:M2 and non preparation of separate panels amounts to violation of dircular. Secondly, it has not been preparod as per instrictions in Ex W2 ciroalar regarding projected Vacaricies for the period from 1987 to 1994 Furthermore no wait list was released/ published even after the Court ofder in WMP No. 11932/91 and W. P.No. 7872/91 directing the Respondent Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore,wait list tunder Exi M10 does not carry particulars about the candidate's date ofinitial appointment andtand 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 waît list. Above all , Ex . M1 was not produced at the time of coilciliation 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 documem. It is further contended on behalf of the Petitioner thất though the Respondent/Bank has alleged that these Petitioners were engaged in Idave Vacancy, they have not Been told at the time of initial appointment that their appointment was in leave vacancy. Further, ever before oi 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 élause 2(bo) of the l . D'Act, 1947. Though the Petitioner's Work in the Respondent Bank lis continuous and thongh the Petitioner has performed the duties continuously which is still in existence, the categorisation as such isnot valid and the provisions of Sastry Award are also violated Further, the représentative of the Petitioner relied on the Nilings reported in 19854 SCC 204 H: Di Singh Vs. Roserve Bank of India and Others wherein the Suprente Court has held that to employ workmen as badlies casualsfor temporaries and to continue them as such for many years

with the object of depriving them of the statusdanck privileges of permanent workmen is illégal Learned! representative further contended that Ex MilQwait list hası notbeen prepared in accordance with principle of sefiority.1 in the legal sense, since the selected candidates kith longest service should have priority over those whojoined theservice later and therefore, the wait listunder Exi M10) whichhas been drawn up is contrary to law and also bad ini law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the 'settlement , but in utterm violationand in breach of it . Though clause 2 (e) ofEx . M4/ states that candidates found suitable for permanenti appointment will be offered appointment against existitig future vacancy anywhere in module or circle and incaseta candidate fails to accept the offer of appointment or posting! within the prescribed period , he will be deemed to havel refused it and the name shall stand deleted from thei respective panel and he shall have no further élajm for ? being considered for permanent appointment in the banks The Responderit/Bank has not produced any docuntefit ads show how he was arrived at the seniority and till date, itisl a mystery as to who that senior was and thererislitoa documentary evidence in support of the averment and also for the avertent of MW1/ Therefore , the terminationofthe Petitioner who was in regular service of the Respondent/s Bank isarbitrary mala fide and illegal and the Respondent Bank has notracted in accordance with the terms of settlement on absorption oftemporary employees .Thoughi the Respondent/Bank has produced Ex. M6 which alleged tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central)) Hyderabaditis neither a 18(3 ) settlement nordl2(3) settlement as claimed by the Respondent/Bank which says) onlywith regard to modifications ofEx: MLto Macmadesini terms ofEx: M6 . Though the Respondent/Bankiproduced ExM7 and 41 linterim orders passed byHigh Court of Madras inWMP Nei 11932/9 Land WoP. Nox7872/91 ceased) tohave any relevance when the main writthas been disposedi 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 crosse éxaminationshad becomelapparent that they have no personal knowledge about the settlements which are marked as Ex ML to M5 Above all , though the Respondent /Banki has referred to voluntary retirementischemejzin the Respondent/Bank it was implemented only inghe year 2005 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case:The Pétitioners have completed the service of 240 day's and more in a continuous period of calendar months Asensitinedunder Sections 25Band 25 of the Industrial Disputes Act, therefore, their retrenchment from serviceis illegabandagainst the mandatoryprovisions of Scotion 25 and therefore, they are deenied tobe in continuous service oftheRespondent/Bank/ and/they are entitled to the benefits under theprovisionsof.Act!Act! It is further contendedon behalf ofthe Petitionei that though some ofthe Hetitionets in the connected:I.Ds havenot completed 240 days ,singe the Respondent/Bankhawnot taken into consideration and not included the Sundays and paid holidays as dayston, [PART II SEC. 3(ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

7308

which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International BankingCorporation Vs. Management of American Express, International Banking Corporation wherein the Supreme Court has held that "the expression 'actually worked under theemployer 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 ofwait lists and out ofthese Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 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 Triburial has to pass an award in their favour mandas

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 1.1 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 ofconciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 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 of mala fides, fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight, and consideration, " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308.K.C.P., Ltd. Vs. PresidingOfficer and Others wherein the Supreme Court, has held that " settlement are divided into two categories. namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) thosearrivedat in the course of conciliation proceedings under Section 18 (3 ) . Asettlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majorityunion 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 nilings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the freewill ofthe parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other, inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged 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 vicw 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 drawit under the provisions of Sections 18(1) and 18 (3 ) of the D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive.Further, they have concealed the material facts that the Petitioner was wait listed as per length ofhisengagement and could not be absorbed as he was positioned down in the seniority. The Respondent Bank was engaging temporary employocs due to business exigency for the performance of duties as: messenger.. Further, the allegation that he was sponsored by EníploymentExchange is incorrect and the allegation that he worked as tempóraby,messenger is also incorrect, they were engaged against leave vacancies. The settlement entered into By the Respondent/Bank and the federațion were bona fide which were the only workable solution and isbinding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questionedby any union and the settlements were bank level settlements and operate throughout the country. Further,the relied on 7309

THE २०२६ भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24.119290111ANAD

[भाग II-खंड ३( ii) ]

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 ti nero hae máte " Ausão ) et vir 10 w

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 Petitionen is entitled to be reinstated in service as alleged by him and whether he is entitled 10, the back wages as alleged by him. Therefore , the argument , advanced on the side of the Respondent that it is beyond , the scope of reference is without any substance to bolو 11. Learned counsel for the Respondent further contended that though the reference made inin 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 Pétitioner and not reinstatement as alleged by the Petitioner in the Claim Statement

13 : 1 find some force in the contention of the representative for the Petitioner. Therefore, 1 find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to 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 12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive : inthe matter oftenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla . Hotel and Shop Workers Union Vs. Industrial Tribunal, Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability ofa reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it , it has only one 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 Ván Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal. cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings ofparties . " He also relied on the rulings reported in 1998 LAB IC:1507. A. Sambanthan Vs. Presiding Officer , Labour Court, Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express 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

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he hass 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 herelied on the rulings. repórted 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 onthebasis ofcompetitive examination acquires a right: ofappointment in Govt. service in an existing or a future vacancy. In that case , pruning of select list on reduction in number ofyacancies 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 werd 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, 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 ofthe bank. Whatever conditional right they had come to an end. with the expiry of the panel The claim of the Respondents * 7310

[PART II SEC. 3 (1 ) THE GAZETTE OF INDIA SEPTEMBER 15 , 2007/BHADRA 24, 1929

that question of confirmation or regularisation of an

irregularly appointed carididáte would arise, if the candidate concerned is appointed in an irregular manner or on ad hocbasis 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 suche 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 toto 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, 19 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 ofBihar and Ors . wherein, thethe Supreme Court hasheld that "they are temporary employees working. on daily wages . Under these circumstances, their disengagementfrom service cannot be construed to be a retrenchment under the HD Act. The concept of retrenoliment therefore, cannot be stretched to such an extent as to cover these employees: Since they are only dailywage employees and have no right to the posts , their ! disengagement is not arbitrary " He further relied on the rulings reported in 1994:3 LLJ ( Supp) 754 wherein the ? Rajasthan High Court has held that "Under Section 25Gof: the I.D. Act retrenchment procedure following principle of 'last come first go ' is not mandatory but only directoryj nsufficientigrounds shown, the employer is permitted tos depart from the said.principle retrenching seniors and retainingjuniors . " Though in this case , the Petitioner hasa alleged that his juniors have been made permanent/ in banking service, he has not established with any evidence! that his juniors were made permanent by the Respondent/ Bank: Anyhow, if the Petitioner has shown anything, thes Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioners 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.Taut bio med huc hai disteris albaMed 15 Learned Senior Advocate further argued that 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 DashVs. 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 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 LÁB IC 2168 State of Haryana and Ors . Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those adhoc temporary employees who have continued for more than a year should bebe regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby aback door, (c) he was not eligible and qualified for the post at the time ofhis appointinent, (d) his record of service since his appointment is not satisfactory These arethe additional problems indicated by us in para 12 which would arise from giving of such blanket orders : None of the decisions relied upon by the High Court justify such! wholesale, unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumptionmay be justified only when such continuance: extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as 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 reliefmust be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one. From this , the impugned directions must be held to be totally untenable and, unsustainable Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts:" So far as the question of confirmation of these employees whose entry itselfwas illegal and void is concerned , it is to be noted

even in recent decision reported in 2006,4 SOC J Secretary State ofKarnataka Vs. Uma Devi, the Supreme Court has held that merely because a temporary employco or a casual wageworker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength 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 $7311

भारत का राजप्पन्न: सितम्बर 15, 2007/भाद्र 24, 1929 HTTHNAD THE

and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was onlyto restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned 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 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 areare onlyonly temporarytem employees and since it is not shownshown beforebefore this Tribunal that the Respondent/Bank has got sanctioned posts fortemporary 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 reliefion snadno

19. But, I find since the Supreme Couthe Supreme Court has held that

temporary employees are not entitled to clainvany 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/Bankas alleged by him. Therefore , I find this point against the Petitioner.

Aoemd asrano vd bruzzi

appointment, do not acquire anyoquire 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 scherme of appointment, perpetuate îllegalities 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 Courtt whilewhile laying down the law, has clearly heldthat " 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 merelybecause atemporary employee or a casual wage worker.is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or mäde permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection asnas envisaged by relevant rules." Further, in CDJCDJ2006'S2006 SC 443 National FertilizerssLtd.Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that regulathat " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation ofan employee upon the expiry of purported period ofprobation would not arise. " Further , in CDJ 2006 SC395Municipal Council , Sujanpur Vs. Surinder Kumar, the Supreme Court has held that it is not disputed that the appointment of the Respondent was not in sanctionedpost. Being a" State within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruitingits 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 StateAgro Industries Development Corporation Vs. SeGy 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'seregularised in servicein 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 markmarket economy, globalisation , privatisation andand outsourcing is evident, in view of the settled legal position, as noticed hereinbefore

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

20. In view ofof my foregoing findings that the Petitioner is a temporary employee and he is not entitled'to Bè absorbed in regular service or hade 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.

$ 7312

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24, 1929

21 Thus , the reference is answered accordingly.

[PART I SEC. 3 ( i) ]

Description ,

Ex. No. Date

(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. ) ass of dup ary Nil

W13

Xerox copy of the Reference book on staff matters Vol . III consolidated upto 05

W14 06-03-97

όλα πή που του KEJAYARAMAN, Presiding Officer Witnesses Examined an wow donte cousa o

WW1 Sri R. Rajasekaralie For the Petitioner

WW2 Sri V. S. Ekambaram ??????? ????? ????????????????????

For the Respondent : MW1 Sri C. Mariappan

D MW2 Sri C. Ramalingam Documents Markeds

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

W15 06-03-97 Xerox cop06-03-97 Xerox copy of the call letter from Ma Madurai zonal office for interview of messenger Return of ut bo post-K. Subburajrolarne, kalitate W16 06-03-97 Xerox copy of the call letter fromMadurai zonal office for interview of messenger Velmurugan .

W17017-03-07

Ex. No. Datergbullons Description

W101-08-88 Xerox copy of the paper publication in Jail to win daily Thanthi based on Ex. M1 .

W220-04-880 Xerox copy of the: administrative to hopes to 18 ix.guidelines issuedby Respondent/Bank to noitourmio es for implementation of Ex: M1, S W3 24-04-91 Xerox copy of the circular of burn zauriziorna vi Respondent/ Bank to all Branches stonedir regarding absorption of daily wagers in messenger vacancies

W4 0105-91Xerox copy of the advertisement in The wisko apoi me ni Hindu'on daily wages based on Ex. W4.

W5 20-08-91 Хегох copy of the advertisement in The Fonollist a Hindu extending period of qualifying botohief blodservice 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 boslaaie oued Respondent/ Bank to all Branches Tubacken Of To bo regarding identification of messenger Jose esile blud devacancies and filling them before Xerox copy of the service particulars W1826

26-03-97 Xerox copy of the letter advising MoreSelection of part time Menial —G . Pandi .

W19 031-03-97 Xerox copy of the appointment order to 15. contrámec Sh G. Pandit ont un pienem mon W20 Feb. 2005 Xerox copy of the pay slip of T. Sekar Publime for the month ofFebruary, 2005 wait list No. 395 ofMadurai Circle

W21013-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary to souben cat employees from the panel ofwait list.

W22 09-11-92 Xerox copy of the Head Office Circular σεις No. 28 regarding norms for sanction of oh job bongail remessenger staff.trend i enenque alt W23 09-07-92 Xerox copy of the minutes of the Bipartite lan meeting . το ?????????????? at mabal to restes W2409-07-92 Xerox copy of the settlement between se zator dom to Respondent/Bank and All India State hubcatBank of India Staff Federation for 3 Www dibal implementation of norms creation of dnson : absh part time général attendants.or W25 07-02-06

W Faraon Xerox copy of the instruction in tolone sniliyonReference book on staff about casuals ai gajarmortuo luotto be engaged at office/branches to minta ut boltudo messengerial work. I probiva W91982-84 Xerox copy of the service certificate oft Rumpe miotissued by Tiruvallur branches W10 03-04-93 Xerox copy of the service certificate issued by Overseas branch.

11 2903-96

Xerox copy of the service certificate issued by International branch .

Xerox copy of the local Head Offic circular about conversion of part time employees and redesignate them as general attendants . od or mil noge W2631-12-85Xerox copy of the local Head Office Easyen gas ruri vidcircular about appointment of temporary arni Foot Lemployees in subordinate cadre , bot Forthe the Respondent/Management

Ex. No. Datelesed Descriptionzon lugai bolbros 17-11-87 Xerox copy of the settlement.

M2

1607-88

Xerox copy of the settlement.

Xerox copy of the settlement.ουης M327-10-88

Wl2Nih ton Xerox copy of the administrative Hemm mmmmmo guidelines, in reference: book on staff orli bat 1 Atyn matters , issued by:Respondent/Bank: ok nii mbenisregarding recruitment to subordinate cadre and service conditions.

x copycopy ofof the settlement M5 : 30:07-96 Xerox copy of the settlementatio [भाग II- खंड 3 (ii ) ]

Ex. No. Date

Description

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

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

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

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in . W.A. No. 1893/99.

नईदिल्ली, 23 अगस्त, 2007

का. आ. 2658.औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 193/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं. एल-12012/637/1998- आई आर ( बी-I ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 23rd August, 2007

S. O. 2658. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 193/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen, which was received by the Central Government on 23-8-2007 .

[No. L- 12012 /637/ 1998 -IR (B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 3 1st January, 2007.

PRESENT

K. Jayaraman , Presiding Officer

INDUSTRIAL DISPUTE NO. 193/2004 (Principal Labour Court CGID No. 301/99) [In the matter of the dispute for adjudication under clause (d) of Sub- section ( 1 ) and Sub - section 2 (A) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen ] 3677 QI/07-52

7313

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929.

BETWEEN

I Party/Petitioner Sri C. Parimelazhagan

AND

: TheAssistant General : II Party/Management Manager,

State Bank of India,

"Region-I Trichirapalli.

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative For theManagement : M/s . K. S. Sundar, Advocates

AWARD

The Central Government , Ministry of Labour vide Order No. L - 12012/637/ 98 - IR(B - I) dated 28-4-1999 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. 301/99 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. 193/2004.

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

"Whether the demand of the workman Shri C. Parimelazhagan, wait list No.346 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? " 3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

The Petitioner was sponsored by Employment ponsore 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 H. E. Kailasapuram branch from 27-7-1987 . 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 [PART II- SEC. 3 (ii) ] 7314

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

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 employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-7-88 , 7-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) 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 waitlisted as candidate No. 346 in waitlist of Zonal Office, Trichy. So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is falseto 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 Clausė 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 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 H. E. Kailasapuram 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 . From 27-7-1987, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Trichy branch, another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since accordingto the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware ofsettlement by which his services and number of days worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award . Even though the settlemerit 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 [भाग II-खंड 3(ii ) ]

7315

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

6.Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules of the Respondent/Bank , recruitment ofclass IV staff in the Respondent/ Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence , the Petitioner prays that an award may be passed in his favour.

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

(i) " Whether the demand of the Petitioner in Wait List No. 346 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? "

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

PointNo. 1 :

extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 346 , 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 say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages / casual labour. Further, for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees. After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

: 8. 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 Courtto protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (civil ) 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time 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.

7316

د.

bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex . W2 four types ofwaiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But, when MW1 has spoken about the settlements, he deposed that settlement dated 27-10-88 was not included intheMadras circle since the High Court order is there, but he has not produced any document in support of the so called non - inclusion except his bald statement. Further, according to MW1 wait list under Ex. M10 was prepared on2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt with dailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 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/Bank by combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates .While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals. Therefore, both belong to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore, it is violative of Articles 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M10 namely wait list is not in conformity with the instructions of Ex. M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/91 directing . the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months, and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches / offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V - A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit of the 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 ofMW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex. M1 deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of 'A, B and C' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal. Clause 1 (a) of Ex . Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave /casual vacancies ofmessengers , farashes, cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention ofthe 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 [ भाग II-खंड 3 ( ii ) ]

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7317

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 and W. P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination 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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf ofthe Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since theRespondent/Bank lias 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 40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

10. But, as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in bythem to arrive at their respective seniority. From all these- things, it is clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2( 00) ofthe I. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though 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 whojoined the service later and therefore , the wait list under Ex. M10 which has been drawn up is contrary to law and alsobad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2 (e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of 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 [PART II- SEC . 3 ( ii)] 7318

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) thosearrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union ofwhich the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

in this case and the Petitioners in the connected disputes were not in continuous service. Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 (1 ) and 18(3 ) of the I. D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger. Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation 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 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. PresidingOfficer and Others wherein the Supreme Court has held that " settlements are divided into two categories

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discernible from the material before it, it has only one 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 OrientPaperMills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court, Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference, it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and 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 .

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 .

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 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 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 19913 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances, after the expiry ofthe date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further, he relied on the rulings reported in 1992 LAB IC 2168 State of Haryana and Ors. Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those ad hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had 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 7320

[PART II- SEC . 3 (ii )] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

'last come- first go ' is not mandatory but only directory, on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retainingjuniors. " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days 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 20064 SCC 1 Secretary, State ofKarnataka Vs. Uma Devi , the Supreme Court has held that " merely because a temporary employee or a casual wageworker is continued for a time beyond the term ofhis appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. it has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. " Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise. " Further, in CDJ 2006 SC395 Municipal Council, Sujanpur Vs. Surinder Kumar , 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 Biharand Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry 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 such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp) 754 wherein the RajasthanHigh Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of [ भाग II-खंड 3 ( ii ) ]

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." 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.

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 ofthe Respondent/Bank:

18. Further, the representative for the Petitioner contended that in similar cases , this Tribunal had ordered 3677 Gl/07-53

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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 ?

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 :WWI Sri C. Parimelazhagan 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 dailyThanthi based on Ex. M1 .

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 ..

W3 24-04-91 Xerox copy of the circular of Respondent/Bankto 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 .

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Date

Ex. No.

Description

Ex. No. Date

Description

26-03-97

W22

20-08-91

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

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

31-03-97

W23

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

Feb. 2005

W24

15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

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

W7 25-03-97

13-02-95

W25

Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel ofwait list .

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

09-11-92

W26

W8 Nil

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

09-07-92

W27

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

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W28

03-03-88 Xerox copy of the service certificate issued by H. E. Kailasapuram Branch.

W10 1993 Xerox copy of the service certificate issued by Tiruchirapalli branch .

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

02-08-94

W11

07-02-06

W29

Xerox copy of the service certificate issued by Tiruchirapalli branch .

01-12-95

W12

Xerox copy of the service certificate issuedby Tiruchirapalli STC branch .

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

06-07-96

31-12-85

W13

W30

Xerox copy of the service certificate issued by Tiruchirapalli STC Branch.

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

W14 10-12-96

For the Respondent/Management:

Xerox copy of the service certificate issued by Tiruchirapalli STC Branch.

Date

Ex. No.

Description

10-12-96

W15

Xerox copy of the service certificate issued by Tiruchirapalli STC branch .

Xerox copy of the settlement .

17-11-87

W16 Nil

Xerox copy of the settlement .

16-07-88

Хегох 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 issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

Xerox copy of the settlement.

30-07-96

W17 Nil

09-06-95

Xerox copy ofthe minutes ofconciliation proceedings .

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

M7 28-05-91

06-03-97

W18

Хегох copy of the order in W.P. No. 7872/91 .

Xerox copy ofthe call letter fromMadurai zonal office for interview of messenger post-V. Muralikannan.

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

06-03-97

W19

M9 10-07-99

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

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

M10 Nil

06-03-97

W20

Xerox copy of the wait list of Trichy Module..

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

25-10-99

M11

W21 17-03-97

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

Xerox copy of the service particulars- J.Velmurugan.

7323

भारत का राजपत्र: सितम्बर 15, 2007/भाग 24, 1929

[.भाग II-खंड 3 (ii) ]

AWARD

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2659.- औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 192/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था ।

The Central Government, Ministry of Labour vide Order No. L- 12012/636/98 - IR (B - I ) dated 28-4-1999 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. 300/99 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. 192/2004.

[सं . एल-12012/636/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 23rd August, 2007

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

"Whether the demand of the workman Shri G. Panchatcharam , wait list No. 288 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ?, If so , to what relief the said workman is entitled ? "

S. O. 2659. - In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 192/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007 .

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

[No. L - 12012/636/ 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 . 192/2004

(Principal Labour Court CGID No. 300/99)

[Inthe matter of the dispute for adjudication under clause (d) of Sub - section ( 1 ) and Sub - section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947), between theManagement of State Bank of India and their workmen ]

BETWEEN

Sri G. Panchatcharam : I Party/Petitioner

AND

The Assistant General : II Party/Management

Manager,

State Bank of India ,

Region-I

Trichirapalli .

APPEARANCE

: SriV. S. Ekambaram,

Forthe Petitioner

Authorised Representative

For theManagement : M/ s . K.S. Sundar , Advocates

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical cxamination . He was appointed on temporary basis at Tirukkoilur branch from 29-1-1982 . 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, В and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Tiruvallur branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But , they have not informed the result of interview and also with regard to appointment. But , the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From 29-1-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also .

7324

[PART II- SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

While working on temporary basis in Tirukkoilur 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 on31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence, the Petitioner raised a dispute with regard to his non- employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence, since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlementby which his services and number ofdays worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him towork under assumed name or by both which amountstounfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

law,retrenchment and implemented by Respondent/Bank. The claim 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 forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 288 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 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 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 of36 calendar months were to be considered . As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 288 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and hisclaim is liable to be rejected. Further, the said settlements [भाग II-खंड 3 ( ii) ]

were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act , 1981 does not apply to Respondent/Bank and this Tribunal has nojurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. 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 .

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 .

7325

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

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

(i) "Whether the demand of the Petitioner in Wait List No. 288 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger isjustified ?"

(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 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 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. 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.

7326

based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked asEx. MI , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included intheMadras circle since the High Court order is there, but he has not produced any document in support of the so called non - inclusion except his bald statement. Further, according to MW1 wait list under Ex. M10 was prepared on2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as perBipartite Settlement while the 1988 settlement dealt with dailywager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further, the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex. M10 comprises of both messengerial and non - messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative of Articles 14 and 16 of Constitution of India. Therefore, the Petitioner contended that preparation ofEx . 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 and 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 themto arrive at their respective seniority. From all these things, it is clear that Ex . M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list. Above all , Ex . 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 Respondent/Bank to the effect that temporary employees at branches / offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V - A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicableto the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank of India Vs. S. Satyam and Others tire Supreme Court has held that Chapter V- A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . M1 and the averments 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 and C ' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore, the categorization in Clause 1 isillegal . Clause 1 ( a) of Ex. Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories oftemporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex. W8 . Further, the appointment ofdailywage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . in such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared 7327

भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खंड 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 daysand more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service 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 ofAmerican Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal. In all these cases, the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of 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 .

[PART II-SEC. 3( ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24 , 1929

contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable ." Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

12. But, as against this on behalf of the Petitioner it iscontended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot 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, be argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan was positioned down in the seniority. The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that heworked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation 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 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 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 " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18(3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majorityunion has extended application as it will be binding on all workmen of the establishment . Even in case ofthe first category, if the settlement was reached with a representative union ofwhich the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the 7329 [भाग II-खंड 3(ii ) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

Orient Paper Mills Vs. Industrial Tribunal & Ors. wherein theMadhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court, Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions ,sions , 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 .

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 .

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 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 expiryof 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 arethe additional problems indicatedby 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 3677 GI/07-54 7330

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

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

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 wageworker is continued for a time beyond the term ofhis appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not 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 Supreme Court has held that " regularisation furthermore , is not a mode of appointment and ifappointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported periodofprobation would not arise . " Further, in CDJ 2006 SC395 Municipal Council, Sujanpur Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also 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 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 questionof 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 be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts, their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. 'Act retrenchment procedure following principle of 'last come-first go ' is not mandatory but only directory, on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retainingjuniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank . Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. Insuch circumstances , the prayer for reinstatement in the [भाग II- खंड 3 ( ii ) ]

because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , in view of the settled legal position, as noticed hereinbefore . " 16. Relying on all these decisions, learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as teniporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

17. 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 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 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.

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भारत का राजपत्र: सितम्बर 15, 2007 /भाद्र 24, 1929

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 G. Panchatcharam WW2 Sri V. S. Ekambaram Forthe 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 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 messengers posts.

[PART II- SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

7332

Date

Description

Ex. No.

Ex. No. Date

Description

Feb. 2005

W24

W7 25-03-97

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

13-02-95

W25

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

W8 Nil

09-11-92

W26

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 Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W9 09-08-86

W27 09-07-92

Xerox copy of the service certificate issued by Tirukkoyilur branch.

Xerox copy ofthe minutes of the Bipartite meeting.

04-08-88

W10

W28 09-07-92

Xerox copy of the service certificate issued by Tirukkoyilur branch.

03-06-90

W11

Xerox copy of the service certificate issued by Kuvanur branch .

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

W12 Nil

07-02-06

W29

Xerox copy of the service particulars of Petitioner.

19-01-02

W13

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

Xerox copy of the service certificate issued by Tirukkoyilur branch.

21-01-02

W30 31-12-85

W14

Xerox copy of the service certificate issued by Kuvanur branch.

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

22-01-02

W15

Xerox copy of the service certificate issued by Tirukoyilur branch.

For the Respondent/Management :

Date

W16 Nil

Ex. No.

Description

Xerox copy of the settlement .

17-11-87

Xerox copy of the settlement .

16-07-88

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

Xerox copy of the settlement .

27-10-88

W17 Nil

Xerox copy of the settlement .

09-01-91

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

Xerox copy of the settlement .

30-07-96

06-03-97

W18

M6 09-06-95

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

Xerox copy ofthe minutes ofconciliation proceedings.

06-03-97

W19

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-K. Subburaj .

M8 15-05-98

06-03-97

W20

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

17-03-97

W21

Xerox copy ofthe service particulars- J.Velmurugan.

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

26-03-97

W22

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

25-10-99

M11

31-03-97

W23

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

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

[ भाग II-खंड 3 ( ii ) ]

7333

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2660.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 273/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं. एल-12012/523/1998- आई आर ( बी- I ) ] . अजय कुमार, डेस्क अधिकारी New Delhi , the 23rd August, 2007

S. O. 2660.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 273 / 2004) of the Central Government Industrial Tribunal-cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007.

[No. L- 12012/523 / 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 . 273/2004 (Principal Labour Court CGID No. 228/99 ) [ In the matter of the dispute for adjudication under clause (d) of Sub- section ( 1 ) and Sub- section 2 (A) of Section 10 ofthe Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

Sri H. Suresh

: I Party/Petitioner

AND

The Assistant General : II Party/Management State Bank of India ,

Manager, Zonal Office ,

Chennai .

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram,

Authorised Representative For the Management : M/s . K. S. Sundar, Advocates

AWARD

The Central Government , Ministry of Labour vide OrderNo. L - 12012 /523/98 - IR(B - I) dated 19-3-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 228/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution ofthis CGIT -cum- Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I. D. No. 273/2004.

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

"Whether the demand of the workman Shri H. Suresh , wait list No.694 for restoring the wait list of temporary messengers in the establishment of State Bank of Indía and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? "

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

The Petitioner was sponsored by Employment Exchange for the post of sub- staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporarybasis atSanthavasal branch from 19-12-1979 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent/Bank , in addition to its counter, filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were 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 Santhavasal branch. He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally tojoin atthe branch where he initially worked 7334

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II -SEC . 3 (ii)] as a class IV employee . From 12-12-1979 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Santhavasal 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 on31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to his non- employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference 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 ofdays worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts tounfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

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 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. 689 in wait list ofZonal Office, Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointedby Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was 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 subjectto other eligibility criteria , under category ( A) the temporary employees who were engaged for 240 days were to be considered and under category (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees whohave completed 30 days aggregate temporary service inany calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per Clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar 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 689 , he was not appointed. The said settlements were bona fide which were the only workable solution and 7335

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

[भाग II-खंड 3(ii ) ]

Petitioner. Hence , the Petitioner prays that an award may be passed in his favour .

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

(i) "Whether the demand of the Petitioner in Wait List No. 694 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1 :

is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. 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 byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Courtto protect the legal and constitutional rights of the workmen concerned 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 . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation 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

[PART II-SEC . 3(ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

MW1 is unable to say as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further, according to MW1 wait list under Ex . M10 was prepared on2-5-92but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite 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 combining equals with unequals. It is further contended on behalf ofthe 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 distinctcategories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore, it is violative of Articles 14 and 16 of Constitution of India . Therefore, the Petitioner contended that preparation of Ex. M10 namely wait list is not inconformity with the instructions ofEx . M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by themto arrive at their respective seniority. From all these things, itis clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the 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 on behalf of the Petitioner that Ex. W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions ofthe Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . M1 and the averiments of MW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B and C ' is quite opposed to the doctrine of ' last come----first go ' or ' first come - last go ' and therefore , the categorization in Clause 1 is illegal. Clause 1 (a) of Ex .M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers, farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex. W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers .Even ( [भाग II- खंड 3 ( ii) ]

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personal knowledge about the settlements which are marked as Ex. Ml to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under sections 25B and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I, D. Act . It is further contended on behalfofthe Petitioner that though some of the Petitioners inthe connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen 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 ofwait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

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. 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 beenprepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those whojoined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2(e) of Ex .M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he was arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination 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 modifications of Ex. M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased 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

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[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 AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not partiesto the settlement, since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further , he 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.

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 werebona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits, but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Benclı 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.PresidingOfficer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18( 3) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a : representative union of which the contesting workmen were

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7339 2

has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties. " He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court, Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that "the Tribunal 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 .

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 thatthe 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 ofthe bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98, we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services ofthe 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 onthe part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made withmala fide motive . Under such circumstances , after the expiry ofthe date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further, he relied on the rulings reported in 1992 LAB IC 2168 State of Haryana and Ors. Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those ad hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b ) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had 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 indicatedby 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 7340

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[PART II-SEC. 3 ( ii) ]

Bank. Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank camnot 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 ofKarnataka Vs. Uma Devi , the Supreme Court has held that" merely because a temporary employee or a casual wageworker is continued for a time beyond the term ofhis appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not 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 pósition 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 rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise. " Further, in CDJ 2006 SC 395 Municipal Council, Sujanpur Vs. Surinder Kumar, theSupreme 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 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 in the Respondent/Bank. Further, he relied on the rulings reported inAIR 1997 SCC3657 Himanshu Kumar Vidyarthi & Ors. Vs. State ofBihar and Ors . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore, cannot be stretched to such an extent as to cover these employees. Since they are only dailywage employees and have no right to the posts, their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp) 754 wherein the Rajasthan High Court has held that "Under Section 25 G of the I.D. Act retrenchment procedure following principle of ' last come first go ' is not mandatory but only directory, onsufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that hisjuniors were made permanent by the Respondent/ [ भाग II-खंड 3 ( ii ) ]

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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.

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 relief the Petitioner is entitled ?

21. Thus , the reference is answered accordingly.

(Dictated to the P. A. , transcribed and typed by him, corrected and pronounced by me in the open court on this day the 31st January , 2007. )..

K. JAYARAMAN , Presiding Officer 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 doingso. 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.

Witnesses Examined :

Forthe Petitioner : WWI Sri H. Suresh

WW2 Sri V. S. Ekambarara

For the Respondent : MW1 Sri C. Mariappan

MW2 Sri C. Ramalingam

Documents Marked :

Ex. No. Date

Description

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

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 .

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 .

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.

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights 7342

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

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

Date

Ex. No.

Description

W5 20-08-91

W20 13-02-95

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

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

W6 15-03-97

W21 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

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

W7 25-03-97

W22 09-07-92 Xerox copy ofthe minutes of the Bipartite meeting.

W23 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.

W8 Nil

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

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

W24 07-02-06

W9 14-05-86 Xerox copy of the service certificate issued by Santhavasal Branch .

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

W10 23-08-88

W25 31-12-85

Xerox copy of the service certificate issued by Santhavasal 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

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

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

W12 Nil

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

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

M3 27-10-88 Xerox copy of the settlement.

W13 06-03-97

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

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

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

W14 06-03-97

M6 09-06-95

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

Xerox copy ofthe minutes of conciliation proceedings.

W15 06-03-97

M7 28-05-91 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-J. Velmurugan .

M8 15-05-98

W16 17-03-97

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

Xerox copy of the service particulars- J.Velmurugan .

M9 10-07-99

W17 26-03-97

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

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

M10 Nil

W18 31-03-97

Xerox copy of the wait list of Chennai Module.

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

25-10-99

M11

W19 Feb. 2005

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

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

[भाग II-खंड 3 ( ii) ]

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2661. औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 191/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं. एल-12012/635/1998- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी NewDelhi , the 23rd August, 2007 S. O. 2661. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 191/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen, which was received by the Central Government on 23-8-2007.

[No. L - 12012/635/ 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. 191/2004 (Principal Labour Court CGID No. 299/99) [In the matter of the dispute for adjudication under clause (d) of Sub - section ( 1 ) and Sub - section 2 (A) of Section 10 ofthe Industrial Disputes Act , 1947 ( 14 of 1947 ) , between theManagement of State Bank of India and their workmen]

BETWEEN

Sri N. Mohan

: I Party/Petitioner

AND

The Assistant General

7343

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

AWARD

TheCentral Government , Ministry of Labour vide OrderNo. L - 12012/635 /98 - IR(B- I ) dated 28-4-1999 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. 299/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. Afterthe constitution ofthis CGIT- cum -Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I. D. No. 191/2004 .

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

"Whether the demand of the workman Shri N. Mohan, wait list No. 243 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? "

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

: II Party/Management

Manager,

State Bank of India ,

Region - I

Trichirapalli. -

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram,

Authorised Representative

M/s . K.S. Sundar , Advocates For the Management :

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 Thattanchavadi branch from 22-1-1981 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank, in addition to its counter, filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, В and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Thattanchavadi 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 atthe branch where he initially worked as a class IV employee . From 22-1-1981, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also.

7344

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

[PART II-SEC. 3( ii ) ] While working on temporary basis in Pondicherry 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 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days 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 to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522 ( 4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular. The Respondent /Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

Section 18 ( 1 ) and 18(3 ) of I. D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espousedby State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-7-88 , 7-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of I. D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was waitlisted as candidate No. 243 in waitlist of Zonal Office, Chennai . So far 212 wait listed temporary candidates , out of 652 waitlisted 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 sélection process in terms of settlements drawn as per retrenchment provisions referredto 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 of36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered . As per Clause 7; the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was waitlisted 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 [ भाग II-खंड 3 ( ii ) ]

his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further, for circle of Chennai wait list 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.

6.Again, thePetitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank ofIndia Staff Federation were under Section 18 (1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules ofthe Respondent/Bank , recruitment 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.

3677 GI/07-56

7345

भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

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

(i) "Whether the demand of the Petitioner in Wait List No. 243 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

(ii) "To what relief the Petitioner is entitled ?" Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners 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 oft Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Unionhad filed a Writ Petition before the Supreme Courtto protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (civil ) 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time offinal hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex. M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement 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 15; 2007/BHADRA 24, 1929

[PART II-SEC . 3 (ii) ] 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 and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit 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 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 avernents of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of ' A, B and C ' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore, the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex. MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staffmatters , copyofwhich ismarked as Ex. W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex. W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case. Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and

9-1-91 which are marked as Ex. M1 , M3 and M4 respectively. But , when MW1 has spoken about the settlements, he deposed that settlement dated 27-10-88 was not included inthe Madras circle since the High Court order is there, but he has not produced any document in support of the so called non - inclusion except his bald statement. Further, according to MW1 wait list under Ex. M10 was prepared on2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt 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 combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative of Articles 14 and 16 ofConstitution of India . Therefore , the Petitioner contended that preparation of Ex. M10 namely wait list is not inconformity with the instructions ofEx . M2 and non- preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987to 1994. Furthermore, no wait list was released/ published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of 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 7347 [ भाग II- खंड 3 ( ii ) ].

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24 , 1929

the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 daysand 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 îs 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 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.

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 whojoined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2( e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deenied 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 thePetitioner 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 whichhich 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 modifications of Ex. M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination 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

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3(ii ) ] Bank was engaging temporary employees due to business exigency for the performance of duties as messenger.

reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State ofRajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will ofthe parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive inthe matter oftenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order 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 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 Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent Bank and the federation werebona fide which were the only workable solution and 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 IILLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations of mala fides, fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K. C.P. Ltd. Vs. Presiding Officer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii ) those arrived at in the course of conciliation proceedings under Section 18(3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union 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 [ भाग II-खंड 3 (ii) ]

7349

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

OrientPaperMills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 А. Sambanthan Vs. Presiding Officer, Labour Court , Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have 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 .

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 .

merits. In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons. removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in.. 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that " by... its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services 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 permarient absorption in the services ofthe bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus misconceived and therefore, the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions, learned counsel for the Respondent contended that since the Petitioner has no rightto question the wait list and since there is no mala fide onthe part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry 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 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 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 onlyquestion 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 ofappointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative in one case, a direction was given to regularise employees 7350

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3(ii) ]

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 eveninrecent decision reported in 2006 4 SCC I Secretary, State ofKarnataka Vs. Uma Devi , the Supreme Court has held that "merely because a temporary employee or a casual wageworker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength 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 regularrecruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode ofpublic appointment which is not permissible. " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the 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 , isnot 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 ofpurportedperiod of probation would not arise. " Further, inCDJ 2006 SC 395 Municipal Council , SujanpurVs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its 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 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 arid 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 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to giveive 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, their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come- first go ' is not mandatory but only directory, on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retainingjuniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank . Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the Development Corporation Vs. S.C. Pandey wherein the [भाग II-खंड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

7351 Supreme Court has held that " only because an employee hadworked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought aboutby the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore."

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.

Point No. 2 :

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

21. Thus, the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him, corrected and pronounced by me in the open court on this daythe 31st January, 2007. )

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements, the Petitioners cannot now question either the preparation of wait list or nuunber allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

K. JAYARAMAN, Presiding Officer

Witnesses Examined:

For the Petitioner : WWI Sri N. Mohan 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 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex .M1 .

17. I find much force in the contention of the leamed 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 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.

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all branches regarding absorption of daily wagers in Messenger vacancies .

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.

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 .

7352

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

Date

Ex. No.

Description

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts.

W7 25-03-97 Xerox copy of the circular of Respondent /Bank to all branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

W9 Nil Xerox copy of the service certificate issued by Pondicherry branch .

23-10-85

W10

Xerox copy of the service certificate issued by Pondicherry branch .

23-10-92

WII

Xerox copy of the service certificate issued by Pondicherry branch .

23-10-92

WI2

Xerox copy of the service certificate issued by Pondicherry branch .

W13 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding appointment of temporary employees .

W14 Nil Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

06-03-97

W15

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

06-03-97

W16

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

06-03-97

W17

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

17-03-97

W18

Xerox copy of the service particulars- J.Velmurugan.

26-03-97

W19

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

31-03-97

W20

Xerox copy of the appointment order to SriG. Pandi .

Feb. 2005

W21

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

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

Ex. No.

Description

13-02-95

W22

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list. 09-11-92

W23

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

09-07-92

W24

Xerox copy ofthe minutes of theBipartite meeting.

09-07-92

W25

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

07-02-06

W26

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

31-12-85

W27

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

For the Respondent/Management :

Ex. No. Date

Description

Xerox copy of the settlement .

17-11-87

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 settlement .

30-07-96

M6 09-06-95 Xerox copy ofthe minutes of conciliation - proceedings .

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

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

25-10-99

M11.

Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99 , [ भाग II-खंड 3 (ii ) ]

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2662.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 166/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं. एल-12012/572/1998- आई आर ( बी- I ) ]

अजय कुमार , डेस्क अधिकारी New Delhi , the 23rd August , 2007 S. O. 2662. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 166/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007 .

[No. L - 12012/572/ 1998 - IR (B- I)] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 3 Ist January , 2007

PRESENT

K. Jayaraman , PresidingOfficer

INDUSTRIAL DISPUTE ΝΟ . 166/2004 (Principal Labour Court CGID No. 235/99) [ In the matter of the dispute for adjudication under clause (d) of Sub -section ( 1) and Sub-section 2 (A) of Section 10 ofthe Industrial Disputes Act , 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen ]

BETWEEN

Sri P. Valluvan

: I Party/Petitioner

AND

The Assistant General : II Party/Management Manager,

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

3677GI/07-57

7353

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012 /572 /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. 235/99 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. 166/2004.

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

"Whether the demand of the workman Shri P. Valluvan, wait list No. 363 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ? " 3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atTrichyMain branch from 12-5-1986 . 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, В and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements. The Petitioner also submitted his application in the prescribed format through Branch Manager of the Trichy 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 orallytojoin at the branch where he initially worked as a class IV employee . From 12-5-1986 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Trichy Main 7354

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

[PART II-SEC. 3 ( ii ) ] branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager ofthe branch informed the Petitioner orally on 31-3-97 that his services are not required any more andhe need not attend the office from 1-4-97 . Hence , thePetitioner raised a dispute with regard to his non- employment . Since the 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 ofdays worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522 ( 4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

The claim ofthe Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87 , 16-7-88 , 7-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3 ) 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. 383 in wait list of Zonal 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 temporaгу employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered . As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 652-wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 383 , 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.

[भाग II-खंड 3(ii) ]

7355

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

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

(i) "Whether the demand of the Petitioner in Wait List No. 363 for restoring the wait list of temporary messengers in the Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? "

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

Point.No . 1 :

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 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 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 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 . 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 ) ] 7356

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prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. M1 , M3 andM4 respectively. But, when MW1 has spoken about the settlements, he deposed that settlement dated 27-10-88 was not included intheMadras circle since the High Court order is there,but he has not produced any document in support of the so called non- inclusion except his bald statement. Further, according to MW1 wait list under Ex . M10 was prepared on2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court hasheld in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt with dailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution ofIndia . ' 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 combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex. М10 comprises of both messengerial and non- messengerial candidates .While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals. Therefore , both belong to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 and 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 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by themto arrive at their respective seniority. From all these things , it is clear that Ex. M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all, Ex . Ml was not produced at the time 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 listEx. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V - A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex. W2 , W3 and W8 as well as Ex. M8 which constitute /relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex. M1 and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex. M1 deals with categorization of retrenched temporary. employees into ' A, B and C ' , but this categorization of 'A, B and C' is quite opposed to the doctrine of ' last come-- first go ' or ' first come- last go ' and therefore, the categorization in Clause 1 is illegal. Clause 1 (a ) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other 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 asEx. 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 informedabout this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to say as to when the wait list Ex. M10 was 7357 [भाग II- खंड 3 ( ii ) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

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 of Respondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I. D. Act . It is further contended on behalf ofthe Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily.comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular andtherefore, their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing 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.

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

[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 of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

12. But, as against this on behalf of the Petitioner it iscontended that mere wording of reference is not decisive inthe matter oftenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order 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 got power to go into the question whether the Petitioner 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 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 questionedby any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits, but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence 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 BombayHigh Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen ofthe establishment , even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations of mala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.C.P. Ltd. Vs.PresidingOfficer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii ) thosearrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union ofwhich the contesting workmen were members and if there was nothing unreasonable or unfair [ भाग II-खंड 3 (ii ) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

7359 is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court, Madras, wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569.the Supreme Court has held that "the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation 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 .

removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances, denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997.6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98, we are 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 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 onthe part of the Respondent/Bank in preparing the wait list, it cannotbe said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry 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 tothe existence of a vacancy. The direction in effect means that every ad hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b ) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby aback door ; ( c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad hoc employee for one year , it cannot be presumed that there is need for regular post. Such a 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 7360

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24, 1929

Tribunal that he has worked more days than the Petitioner. In such circumstances, the prayer for reillstatement 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 recentdecision reported in 2006 4. SCC 1 Secretary, State of Karnataka Vs. Umå Devi , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term ofhis appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength 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 casually got employed should be directed to be continued permanently.By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, 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 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 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 vacancyncy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees, therefore , remained a nullity. " Therefore, learned counsel for the Respondent contended that these . temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption inthe Respondent/Bank. Further, he relied on the rulings reported inAIR 1997 SCC 3657 Himanshu Kumar Vidyarthi &Ors . Vs. State of Bihar and Ors. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of . 'last come- first go ' is not mandatory but only directory, onsufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that hisjuniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this [भाग II-खंड 3 (ii ) ]

7361

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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 hadworked 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 ."

for regularisation, merely because they have completed 240days ofcontinuous service in a period of 12 calendar months and the Supreme Court has also held that each 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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore, I find this point against the Petitioner.

Point No. 2:

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

21. Thus, the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , correctedand pronounced by me in the open Court onthis day the 31st January, 2007. )

K. JAYARAMAN , Presiding Officer 16. Relying on all these decision , learned counsel for the Respondent corntended 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 cannotbe questioned by the Petitioner.

Witnesses Examined :

Forthe Petitioner :WWI Sri P. Valluvan

WW2 Sri V. S. Ekambaram

For the Respondent : MW1 Sri C. Mariappan

MW2 Sri T.L. Selvaraj

Documents Marked:

Ex. No. Date

Description

WI 01-08-88 Хегох 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.MI .

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 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.

W3 24-04-91 Xerox copy of the circular of Respondent /Bank to all Branches regarding absorption of daily wagers in Messenger vacancies.

18. Further, the representative for the Petitioner contended that in similar cases, this Tribunal had ordered forreinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

19. But , I find since the Supreme Court has held that temporary employees are not entitled to claim any rights

W5 20-08-91 Хегох copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

3677 Gl/07-58 7362

[PART II SEC . 3 ( ii) ] THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24, 1929

Ex. No. Date

Description

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent /Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97 .

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work.

W9 09-06-86 Xerox copy of the service certificate issued by Tiruchirapalli Branch , 06-01-87

W10

Xerox copy of the service certificate issued by H.E. Kailasapuram branch .

20-08-91

W11

Xerox copy of the service certificate issued by Tiruchirapalli branch. 23-04-93

W12

Xerox copy of the service certificate issued by H.E. Kailasapuram branch .

23-04-93

W13

Xerox copy of the service certificate issued by Tirichirapalli Town Branch. 24-06-93

W14

Xerox copy of the service certificate issued by Tiruchirapalli Z.O. Branch .

08-07-93

W15

Xerox copy of the service certificate issued by Trichy 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 .

W17 Nil

Xerox copy of Vol . III of Reference book on staff matters 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 .

06-03-97

W19

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

06-03-97

W20

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

17-03-97

W21

Xerox copy of the service particulars- J.Velmurugan .

26-03-97

W22

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

Ex. No. Date

Description

31-03-97

W23

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

Feb. 2005

W24

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

13-02-95

W25

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

09-11-92

W26

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

09-07-92

W27

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W28

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

07-02-06

W29

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

31-12-85

W30

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

For the Respondent/Management:

Date

Ex. No.

Description

Xerox copy of the settlement. 17-11-87

Xerox copy of the settlement. 16-07-88

Xerox copy of the settlement .

27-10-88

Xcrox 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 Хегох 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 & 16290/99 in W.A. No.. 1893/99 .

[भाग II-खंड 3 ( ii) ]

नई दिल्ली , 23 अगस्त, 2007

का. आ. 2663.-औद्योगिक विवाद अधिनियम , 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 167/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं . एल-12012/573/1998- आई आर ( बी-1 ) ]

अजय कुमार , डेस्क अधिकारी NewDelhi , the 23rd August, 2007

S. O. 2663. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 167/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007.

[No. L - 12012/573/ 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 . 167/2004 (Principal Labour Court CGID No. 236/99) [In the matter of the dispute for adjudication under clause (d) of Sub - section ( 1 ) and Sub - section 2 ( A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , between theManagement of State Bank of India and their workmen ]

BETWEEN

: I Party/Petitioner Sri M. Periasamy

AND

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

Trichirapalli.

APPEARANCE

Forthe Petitioner

Sri V. S. Ekambaram, Authorised Representative For the Management : Mr. F. B. Benjamin George , Advocate

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भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24 , 1929

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/ 573 /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. 236/99 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. 167/2004 .

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

"Whether the demand of the workman Shri M. Periasamy wait list No. 423 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ?" 3. The allegations of the Petitioner in the Claim Statement are briefly as follows:-

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Sirupakkam branch from 13-9-1984. 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 upby 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 interviewto be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Sirupakkam branch . He was called for an interview by a Committee appointed by Respondent /Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From 13-9-1984, the Petitioner has been working as a temporary messenger and sometimes perforn ing work in other branches also . While working on temporary basis in Neyveli 7364

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24 , 1929

[PART II-SEC. 3 ( ii ) ] Township branch, another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays 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 to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act . The termination ofthe Petitioner is against the provisions of para 522 ( 4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding 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.

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 thathe was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-7-88, 7-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI. D.Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 423 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was dueto the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listedat 423 , 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 [भाग II-खंड 3 ( ii ) ]

7365

भारत का राजपत्र: सितम्बर 15, 2007/ भांद्र 24, 1929

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

(i) "Whether the demand of the Petitioner in Wait List No. 423 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? "

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

Point No. 1:

were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment ofPermanent Status to Workmen ) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further, for circle of Chennai wait list ofdaily wageswas not finalized and hence not published and there is only one wait list for the appointment of temporary employees. After the expiry of wait list , the Petitioner has no claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

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 fileda Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (civil ) 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by. employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus, the Respondent /Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence, the Petitioner prays that an award may be passed in his favour.

[PART II- SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included intheMadras 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 withregard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as perBipartite Settlement while the 1988 settlement dealt with dailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , 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 attempttowriggle out the illegality committed or perpetrated by the Respondent/Bank by combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex. M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed afterdue process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals. Therefore, both belong to two different and distinct categories. But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter ofabsorption . Therefore , it is violative of Articles 14 and 16 of Constitution of India . Therefore, the Petitioner contended that preparation ofEx . M10 namely wait list is not in conformity with the instructions of Ex. M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published even after the Court order in WMP. No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published inThe Hindu dated 1-8-88 . Furthermore, wait listunder Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further, they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only for the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that onbehalfof the Petitioner that Ex . W2, W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex. M1 and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has 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 and C ' is quite opposed to the doctrine of ' last come-first go' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex. Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters, copy ofwhich is marked as Ex. W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions. In such circumstances, the absorption of casuals along with the eligible categories is not valid . Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex. W2 four types of waiting lists have tobe prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MWJ is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively.

[ भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24 , 1929

7367

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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalfof the Petitioner that though some of the Petitioners in the connected I.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 ofwait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault of theirs, they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

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 thePetitioner has performed the duties continuously which isstill in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative 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/ futurevacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he was arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the 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 tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central) , Hyderabad , it is neither a 18(3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modifications ofEx . M1 to M4 made in terms of Ex. M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner. Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination 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

[PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

exigency for the performance of duties as messenger. Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will ofthe parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for 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.

Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation werebona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen ." Learned counsel for the Respondent further relied on the rulings reported in 1997 IILLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases,where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.Presiding Officer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii ) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmenwere members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering

7369

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24 , 1929

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 wouldprolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and candecide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to 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.

discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not getany, 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, whenit firstdecided 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. 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 enteredby aback door; ( c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad hoc employee for one year , it cannot be presumed that there is need for regular post . Such a 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 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 ofappointment in Govt . service in an existing or a future vacancy. In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and that in each and every case , such a direction must follow 3677 Gl/07-59 7370

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II- SEC . 3 ( ii) ] 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 itselfwas 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 be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore, cannot be stretched to such an extent as to cover these employees. Since they are only dailywage employees and have no right to the posts, their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the RajasthanHigh Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come- first go ' is not mandatory but only directory, 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. Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and therefore , the claim is to be dismissed with costs.

7371 भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner.

Point No. 2 :

subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . "

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

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 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.

Forthe Petitioner : WW1 Sri M. Periasamy 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 dailyThanthi 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 .

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 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 .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

18. Further, the representative for the Petitioner contended that in 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.

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

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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim

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

7372

[PART II-SEC . 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

Ex. No. Date

Description

FortheRespondent/Management :

Ex. No. Date

15-07-88

Description

Хегоx copy of the service certificate issued by Sirupakkam branch .

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

W10 15-07-88

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

Xerox copy of the service certificate issued by Kaludur branch .

M3 27-10-88 Xerox copy of the settlement .

W11 14-09-98

Xerox copy of the service certificate issued by Neyveli branch.

Xerox copy of the settlement .

09-01-91

W12 Nil

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings.

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

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

W13 Nil

Xerox copy of Vol . III Reference book onstaffmatters upto 31-12-95

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

W14 06-03-97

M9 10-07-99 Хегох copy ofthe order of Supreme Court in SLP No. 3082/99 .

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

M10 Nil

W15 06-03-97

Xerox copy of the wait list of Trichy Module.

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

25-10-99

M11

W1606-03-97

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

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

नई दिल्ली, 23 अगस्त, 2007

W17 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

26-03-97

W18

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

W19 31-03-97 Xerox copy of the appointment order to Sri G. Pandi,

का. आ. 2664.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 169/2004 ) को प्रकाशित करती है , जो कैन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । W20 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 ofMadurai Circle.

[सं. एल-12012/28/1998- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी W21 13-02-95

New Delhi , the 23rdAugust, 2007 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 Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W23 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W24 09-07-92

S. O. 2664. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 169/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen, which was received by the CentralGovernment on 23-8-2007.

[No. L- 120 12/28/ 1998- IR (B-I)] AJAY KUMAR, Desk Officer

ANNEXURE

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

W25 07-02-06

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

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

W26 31-12-85

Wednesday, the 31st January, 2007 PRESENT

K. Jayaraman, Presiding Officer

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

[भाग II- खंड 3 (ii) ]

7373

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

INDUSTRIAL DISPUTE NO. 169/2004

(Principal Labour Court CGID No. 256/99)

[In the matter of the dispute for adjudication under clause (d) of Sub- section ( 1 ) and Sub- section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), between theManagement of State Bank of India and their workmen]

BETWEEN

Sri C. Govindan

: I Party/Petitioner

AND

:II Party/Management

The Assistant General Manager, State Bank of India, Region-I Trichirapalli

APPEARANCE

For the Petitioner :

SriV. S. Ekambaram,

Authorised Representative

For theManagement :

M/ s. K.S. Sundar, Advocates

AWARD

The Central Government , Ministry of Labour vide Order No. L - 12012/28/98 - IR(B - I ) dated 10-5-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 256/99 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. 169/2004 .

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

"Whether the demand of the workman Shri C. Govindan, wait list No. 498 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, towhat relief the said workman is entitled ? "

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

a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, В and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Maduranthakam branch . He was called for an interview by a Committee appointedby Respondent/Bank in this regard. But, they have not infortned the result of interview and also with regard to appointment . But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From 1982-83 the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Maduranthakam branch , another advertisementby 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 frameddid 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 and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry . Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the 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 Maduranthakam branch from 19-11-1982 , 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 . TheRespondent/Bank, in addition to its counter, filed 7374

[PART II-SEC . 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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.

who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered. As per Clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was waitlisted at 288 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. 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 .

भारत का राजपत्र: सितम्बर 15, 2007 /भाद्र 24 , 1929

7375

retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other, attendant benefits.

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 ofIndia Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rules of 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 :-

(1) " Whether the demand of the Petitioner in Wait List No. 498 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justitied ?"

(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 . Theyfurther contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Courthas 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 ofMW1 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 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 and C ' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex. Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers, farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention ofthe 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 Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time offinal hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . 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 [PART II-SEC . 3 (ii )] 7376

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

circular.. Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore, wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in bythem to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all , Ex . Ml was not produced at the 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 ofthe Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(00) ofthe I. D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which isstill in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle ofseniority in the legal sense , since the selected candidates with longest service should have priority over those 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 ofit. Though clause 2 (e ) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . 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/ guidelines mentioned in Reference Book on Staffmatters , 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, thesthese 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 ofwaiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 inthis case. Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are markedas Ex. M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included intheMadras circle since the High Court order is there, but he has not produced any document in support of the so callednon-inclusion except his bald statement . Further, according to MW1 wait list under Ex. M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court hasheld in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as perBipartite Settlement while the 1988 settlement dealt withdailywager in Class IV category who were paidwages 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 to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex. M10 comprises of both messengerial and non-messengerial candidates .While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals. Therefore, both belongs to two different and distinct categories. But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 and 16 ofConstitution of India. Therefore , the Petitioner contended that preparation of Ex . M10 namely wait list is not in conformity with the instructions of Ex. M2 and non- preparation of separate panels amounts to violation of [ भाग II-खंड 3( ii) ]

7377 भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

find themselves stranded in life midstream . Theyhave also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

소

Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged tobe a copy of mimites 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 modifications of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased 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. 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 oftheRespondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf ofthe Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days, since theRespondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme 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 beenIpaid wages either under express or implied contract of service or by compulsion of statute , standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular andtherefore, their retrenchment is illegal . In all these cases, the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of40 to 50 years and for no fault of theirs , they

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

[PART II- SEC. 3 ( ii) ] cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K. C.P. Ltd. Vs. PresidingOfficer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majorityunion has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union ofwhich the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will ofthe parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable ." Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

5 11. Learned counsel for the Respondent further contended thatthough the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ?' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt . is not valid. Further, in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner inthe Claim Statement.

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/ [भाग II- खंड 3 (ii ) ]

7379 भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24 , 1929

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 ofcompetitive examination acquires a right ofappointment in Govt . service in an existing or a future vacancy. In that case, pruning of select list on reduction in number 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 . Inwhich , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services 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 rightto 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 weit 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

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3(ii) ] on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore, cannot be stretched to such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts, their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come first go' is not mandatory but only directory, on sufficient grounds shown , the employer is permittedto depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitionerhas alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances, the prayer for reinstatement inthe services of Respondent/Bank cannot be given to the Petitioner and therefore, the claim is to be dismissed with costs.

the original appointment was not, made by following a due process of selection as envisaged by relevant rules." Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation ofan employee upon the expiry ofpurported period ofprobation would not arise. " Further, in CDJ 2006 SC395Municipal Council, Sujanpur Vs. Surinder Kumar , theSupreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law." Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right uponhim tobe regularised in service ." The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . "

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nòr has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements, the Petitioners cannot now question either thepreparation ofwait list or number allotted to them. Under such circumstances , it cannot be questionedby the Petitioner.

17. I find much force in the contention ofthe learned counsel for the Respondent , Though in the Claim Statement, the Petitioners have made so many allegations with regard topreparation 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 [भाग II-खंड 3( ii) ]

7381

भारत का राजपत्र : सितम्बर 15 , 2007/ भाद्र 24, 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 .

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.

15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

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.

W9 11-06-83 Хегох copy of the service certificate issuedby Madurantakam branch .

Point No. 2 :

W10 21-06-88 Xerox copy of the service certificate issued by Purasawakkam branch .

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

W11 21-06-88 Xerox copy of the service certificate issued by World University Service Centre.

W12 05-09-89 Xerox copy of the service certificate issued by Villivakkam branch.

W13 13-06-90 Xerox copy of the service certificate issuedbyMadurantakam branch .

21. Thus , the reference is answered accordingly.

W14 13-06-90 Xerox copy of the service certificate issued by Madurantakam branch.

(Dictated to the P.A. , transcribed and typed by him, corrected andpronounced by me in the open Court on this day the 31st January, 2007. ) `

W15 02-07-91 Xerox copy of the service certificate issued by Anajcut branch.

K. JAYARAMAN, Presiding Officer

Witnesses Examined :

W16 02-07-91 Xerox copy of the service certificate issued by Anajcut branch.

For the Petitioner : WW1 Sri C. Govindan

W17 23-03-98

WW2 Sri V. S. Ekambaram

Xerox copy of the service certificate issued byMadurantakam branch .

W18 Nil

For the Respondent : MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked:

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

Ex. No. Date Description

W19 Nil

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

Xerox copyof Vol. III of Reference book onstaffmatters upto 31-12-95.

W20 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation of Ex .M1 .

7382

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

Ex. No. Date

Description

W21 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W22 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan.

W23 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

W24 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W25 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W26 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

W27 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W28 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W29 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W30 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants.

W31 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

W32 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 16-07-88 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 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 ofHigh Court of Orissa .

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

Description

M9 10-07-99 Xerox copy of the order of Supreme Court inSLPNo. 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 & 16290/99 in W.A. No. 1893/99.

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2665.-औद्योगिक विवाद अधिनियम, 1947 (1947 का. 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 170/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं. एल-12012/42/ 1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी NewDelhi , the 23rd August, 2007

S. O. 2665. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 170/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007.

[No. L- 12012/42/ 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.170/2004 (Principal Labour Court CGID No. 262/99)

[In the matter of the dispute for adjudication under clause (d) of Sub - section ( 1 ) and Sub - section 2 (A) of Section 10 ofthe Industrial Disputes Act , 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen ] BETWEEN

Sri G. Pugazhenthi

: I Party/Petitioner

AND

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

[ भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

7383 APPEARANCE

Forthe Petitioner :

Sri V. S. Ekambaram,

Authorised Representative

For the Management : M/s .K. S. Sundar, Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012 /42 /98 - IR (B- 1 ) dated 10-5-1999 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. 262/99 and issued notices to both parties . Both sides entered appearance and filed their Claim Statement and Counter Statement respectively. After the constitution ofthis CGIT -cum - Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I. D. No. 170/2004.

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

"Whether the demand of the workman Shri G. Pugazhenthi wait list No. 506 for restoring the wait list of temporary messengers in the establishment of StateBank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ?"

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

informed the result of interview and also with regard to appointment. But, the Petitioner was informed orallytojoin at the branch where he initially worked as a class IV employee . From 24-12-1985; the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Cuddalore branch , another advertisement by the Respondent/ Bankwas made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager ofthof the branch informed the Petitioner orally on31-3-97 that his services are not required any more andhe need not attend the office from 1-4-97 . Hence, the Petitioner raised a dispute with regard to his non- employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware ofsettlement by which his services and number ofdays worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act. Thetermination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant ofincrements , leave , medical benefits etc. to thetemporary workmen which amounts to violation of relevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash orby 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 reliefof regular employment in Respondent/Bank with all attendant benefits .

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Nellikuppambranch from 24-12-1985. The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became sübject 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 Nellikuppam branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not

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 7384

[PART II-SEC . 3(ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

employees were appointed and since the Petitioner was wait listed at 506 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. 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.

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 ) ofI . 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 17-11-87, 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. 506 in wait list of Zonal 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 ofthose temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement, employees were categorised as A, B andC. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered. As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also, agreed that wait list was to lapse in December, 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid

settlements out of 652 wait listed candidates , 212 temporary

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 [ भाग II-खंड 3 (ii) ]

7385

भारत का राजपत्र: सितम्बर 15 , 2007/भाद्र 24, 1929

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. 506 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1:

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Courtto protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time 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 notbinding 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 .

valid and enforceable right for appointment , in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Court has held that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmento whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalfof the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex. Ml and the averments ofMW1 and MW2 and their testimonies during the cross-examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements , Further, Clause 1 ofEx . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B and C ' is quite opposed to the doctrine of ' last come-first go ' or ' first come -last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a ) ofEx. M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staffmatters , copyofwhich is marked as Ex. W8. Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex . W2 four types ofwaiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex. M10 were found 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 theRespondent/ 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 suitable for appointment as messengers and sweepers .Even 3677G1/07-61 7386

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

[PART II- SEC. 3 ( ii) ]

こ MWI is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included intheMadras 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 hasheld in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt 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 combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates .While the temporary employees were appointed after due process of sélection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuais. Therefore, both belong to two different and distinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter ofabsorption . Therefore, it is violative of Articles 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M10 namely wait list is not in conformity with the instructions of Ex . M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order inWMP No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published 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 bythem to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential

document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not 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 continuouslywhich isstill in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle 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 of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he was arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the 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 tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modifications of Ex . M1 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 and W. P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner. Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no [भाग II-खंड 3( ii) ]

7387 भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

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 ofthe Respondent/ Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners inthe connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal. In all these cases, the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

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 werebona fide which were the only workable solution and isbinding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence ofplea that the settlement reached in the course ofconciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen ." Learned counsel for the Respondent further relied on the rulings reported in 1997 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 of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.Presiding Officer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 ( 3 ) . 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 ofthe first category, if the settlement was reached with a representative union of which the contesting workmen were 7388

[PART II-SEC. 3 (ii )] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workinen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State ofRajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court , Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation ofthe Labour Court. " Relying on all these decisions, the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

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 ofappointment in Govt . service in an existing or a future vacancy. In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees 7389 [भाग II- खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 15, 2007 / भाद्र 24, 1929

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 cat 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 in the Respondent/Bank. Further, he relied on the rulings reported in AIR 1997 SCC 3657 Himanshu Kumar Vidyarthi &Ors . Vs. State ofBihar and Ors . wherein the Supreme Court hasheld that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees. Since they are only dailywage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the RajasthanHigh Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come first go ' is not mandatory but only directory, onsufficientgrounds shown , the employer is permitted to depart from the said principle retrenching seniors and retainingjuniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank . Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner.

were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services ofthe bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98, we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus misconceived and therefore, the learned Single Judge and the Division Bench, whenit first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists" and relying on all these decisions, learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made withmala fide motive. Under such circumstances, after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further, he relied on the rulings reported in 1992 LAB IC 2168 State of Haryana and Ors . Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those adhoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment sponsore 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 arethe additional problems indicated by us in para 12 which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because 7390

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

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

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 decision, learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service . Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the -wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements, the Petitioners cannot now question either the preparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for 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 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 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.

StateAgro Industries Development Corporation Vs. S.C.

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

7391

Ex. No. Date

Description

W8 Nil

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

W9 14-06-88

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 .

Хегох copy of the service certificate issuedby Nellikuppam branch .

Point No. 2 :

W10 Nil Xerox copy of the service certificate issuedby NellikuppamBranch.

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

W11 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

W12 Nil

Xerox copy of Vol . III of Reference book onstaff matters upto 31-12-95 .

21. Thus, the reference is answered accordingly.

W13 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

(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.)

W14 06-03-97

K. JAYARAMAN, Presiding Officer

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

Witnesses Examined :

W15 06-03-97

Forthe Petitioner : WW1 Sri G. Pugazhenthi WW2 Sri V. S. Ekambaram

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

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

For the Respondent : MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :

W17 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

Ex. No. Date

Description

W18 31-03-97 Xerox copy of the appointment order to SriG. Pandi ,

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

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex .M1.

W20 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list.

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in messenger vacancies .

W21 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

W22 09-07-92 Xerox copy ofthe minutes of the Bipartite meeting.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W23 09-07-92

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

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

W24 07-02-06

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.

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

7392

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

Ex. No. Date

Description

W25 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

For the Respondent/Management :

Date

Ex. No.

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 Xerox copy of the settlement.

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

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list of Trichy Module.

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99.

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2666.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक, अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 190/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं. एल-12012/634/1998 - आई आर ( बी-1 ) ] अजय कुमार, डेस्कअधिकारी New Delhi , the 23rd August, 2007 S. O. 2666.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 190/ 2004) of the Central Government Industrial Tribunal -cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007 ..

[No. L- 12012/634/1998 -IR (B-I) ] AJAY KUMAR, Desk Officer

[PART II-SEC. 3(ii)]

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman, Presiding Officer INDUSTRIAL DISPUTE ΝΟ . 190/2004 (Principal Labour Court CGID No. 298/99) [ 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 theManagement of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner Sri A. Palanichamy

AND

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

APPEARANCE

For the Petitioner

Sri V. S. Ekambaram, Authorised Representative

M/ s . K.S. Sundar , Advocates Forthe Management :

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012 /634/98 - IR(B - I) dated 28-4-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken thedispute onits file as CGID No. 298/99 and issued notices toboth parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution of this CGIT -cum -Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I. D. No. 190/2004,

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

"Whether the demand of the workman Shri A. Palanichamy, wait list No. 449 for restoring the wait listoftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? " 3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

The Petitioner was sponsored by Employment Exchange for the post of sub- staff in Class IV cadre inStateBank of India and he was given appointment 7393 भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24 , 1929

[भाग II- खंड 3 ( ii ) ]

Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent /Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits.

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 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. 449 in wait list . of Zonal 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 as messenger after an interview and medical examination . He was appointed on temporary basis atTirumayam branch from 31-05-1985 . 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 forın of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank, in addition to its counter, filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, В and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of theTirumayam branch. He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orallyto join at the branch where he initially worked as a class IV employee . From 31-05-1985 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Tirumayam branch, another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence, the Petitioner raised a dispute with regard to his non - employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer.

3677 G1/07-62 7394

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

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 rulesofthe Respondent/Bank, recruitment ofclass 1V 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 (i) " Whether the demand of the Petitioner in Wait List No. 449 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1 :

temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised asA, B and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days . aggregate temporary service in any continuous block of36 calendar months were to be considered. As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was wait listedat 449 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment , (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further, for circle of Chennai wait list ofdaily wageswas not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence , for all these reasons, the Respondent prays to dismiss the claim with costs.

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 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 7395

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[ भाग II- खंड 3 (ii ) ]

offinal hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not, binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied anopportunity 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.

employees into ' A , B and C' , but this categorization of ' A, B and C ' is quite opposed to the doctrine of ' last come- first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) ofEx. 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 Staffmatters, copy ofwhich is marked as Ex. W8. Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex. W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 -and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non - inclusion except his bald statement. Further, according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt withdailywager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further, the averment of 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 combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed 9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further, they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC. 2248 CentralBank ofIndia Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A ofthe I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex. M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex. 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 withthe settlements . Further, Clause 1 of Ex . M1 deals with categorization of retrenched temporary 7396

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[PART II-SEC. 3(ii)] after due process of selection and were paid wages on the basisof 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 and 16 ofConstitution of India. Therefore , the Petitioner contended that preparation ofEx. 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 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful andidates -pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though 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 clause2( 00) of the I. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has notbeenprepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those whojoined the service later and therefore , the wait list under Ex . M10 whichhas been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e ) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting

within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he was arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the 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 theRespondent/Bank has produced Ex . M6 which alleged tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad, it is neither a 18( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modifications of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP, No. 11932/91 and W. P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination.had become apparent that they have no personal knowledge about the settlements which are marked as Ex. M1 to M5 . Above all, though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 daysand more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled tothebenefits under the provisions of I.D. Act . It is further contended on behalfof the Petitioner that though some of the Petitioners in the connected I. 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/ 7397 [ भाग II-खंड 3(ii) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal . In all these cases, the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements /lapsing ofwait lists and out 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 .

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.PresidingOfficer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18(3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmenwere members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable." Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them; they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

[PART II-SEC. 3(ii )] THE GAZETTE OF INDIA : SEPTEMBER 15, 2007/BHADRA 24, 1929

advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

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.

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 Umon 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 onthe basis of competitive examination acquires a right ofappointment in Govt . service in an existing or a future vacancy. In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits. Inwhich, 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 theexpiry 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 ofwait list was made with mala fide motive. Under such circumstances, afterthe 7399 [भाग II- खंड 3 ( ii) ]

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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 Courthas held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only 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. Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and therefore , the claim is to be dismissed with costs.

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 Secretary, State ofKarnataka Vs. Uma Devi , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term 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, 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 Haryanaand Ors . Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those ad hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/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 thepost at the time of his appointment; ( d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . Thus , the Supreme Court set aside the orders oflower Courts. He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has, considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question 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 7400

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[PART II-SEC. 3(ii) ]

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 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 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 Supreme Court while laying down the law, has clearly held that"unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules. " Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise . " Further, in CDJ 2006 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 of the Constitution of India would be void in law. " Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore ."

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

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 : WWI Sri A. Palaniswamy 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 ofhis service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the waitlist prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation ofwait list or number allottedto them. Under such circumstances , it cannot be questioned by the Petitioner.

For the Respondent : MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

17. I find much force in the contention ofthe learned counsel for theRespondent. Though in the Claim Statement, [भाग II- खंड 3( ii) ]

7401

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24 , 1929

Documents Marked:

Ex. No. Date

Description

Date

Ex. No.

Description

W16 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

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

W17 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W2 20-04-88

W18 Feb. 2005

Xerox copy of the administrative guidelines issued by 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 of Madurai Circle .

W19 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list. 24-04-91 Xerox copy of the circular of Respondent/ Bank to all Branches regarding absorption of daily wagers in messenger vacancies.

W20 09-11-92

W4 01-05-91 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.

W21 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

20-08-91 Хегох copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W22 09-07-92

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

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

W23 07-02-06

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.

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

W8 Nil

W24 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

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

For theRespondent/Management :

Ex. No. Date

Description

31-5-85 to Xerox copy of the service certificate 07-04-97 issued by Tirumayam branch.

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

W10 Nil

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 administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

Xerox copy of the settlement .

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

W11 Nil

M6 09-06-95

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

Хегоx copy of the minutes of conciliation proceedings .

W12 06-03-97

M7 28-05-91 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-V. Muralikannan.

W13 06-03-97

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

M9 10-07-99

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

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

W14 06-03-97

M10 Nil

Xerox copy of the wait list of Chennai Module.

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

M11 25-10-99

W15 17-03-97 Xerox copy ofthe service particulars- J. Velmurugan .

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

3677 G1/07-63 7402

THE GAZETTE OF INDIA : SEPTEMBER 15,2007/BHADRA 24, 1929

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2667.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 200/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं . एल-12012/354/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 23rd August, 2007

S. O. 2667. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 200/ 2004) of the Central Government Industrial Tribunal- cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen , which was received by the Central Government on 23-8-2007.

[No. L- 12012/354/ 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 . 200/2004 (Principal Labour Court CGID No. 23/99) [In the matter of the dispute for adjudication under clause (d) of Sub - section ( 1) and Sub - section 2 (A) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen]

BETWEEN

SriK. Jeevan

: I Party/Petitioner

AND

The Assistant General : II Party/Management Manager,

State Bank of India, ZonalOffice, Chennai .

APPEARANCE

For the Petitioner

Sri V. S. Ekambaram, Authorised Representative For the Management : M/ s . K. S. Sundar, Advocates

[PART II-SEC . 3 (ii) ]

AWARD

The Central Government, Ministry of Labour vide OrderNo. L- 12012/354/ 98 - IR(B -I) dated 03-02-1999 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. 23/99 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. 200/2004.

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

"Whether the demand of the workman Shri K. Jeevan wait list No. 507 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporarymessenger is justified ? If so , to what relief the said workman is entitled ?"

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

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 Chindadripet branch from 17-03-1982 . 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. TheRespondent/Bank , in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Chindadripet branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee. From 17-03-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Ambattur 7403 भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खंड 3 (ii) ]

Estate branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G and 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice : The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits.

law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-7-88,7-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI. D.Act . Interms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was waitlisted as candidate No. 604 in waitlist of ZonalOffice , Chennai . So far 357 wait listed temporary candidates , out of 744 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 604, 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 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 ) ofI . D. Act in lieu ofprovisions of 7404

THE GAZETTE OF INDIA : SEPTEMBER 15,2007/BHADRA 24, 1929

[PART II-SEC . 3 (ii)]

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

(1) "Whether the demand of the Petitioner in Wait List No. 507for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? "

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

PointNo. 1 :

were notquestioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the wait 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 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 contendedthat the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement asit is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act. As 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.

भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खंड 3( ii) ]

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 on2-5-92but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court hasheld in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlementdealt with dailywager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment ofMW1 and the statements in Counter Statennent are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combining equals with unequals . It is further contended on behalf of the IPetitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non- messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore, both belong to two different and (distinct categories . But, Ex. M3 provides for the same normis to the casuals as in the case of temporary employees in the matter ofabsorption. Therefore , it is violative of Articles 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex . M10 namely wait: list is not in conformity with the instructions of Ex . M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthernnore, no wait list was released/ published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/9 1 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published inTheHindu dated 1-8-88 . Furthermore , wait lisst 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 . Fr on 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 d luring the year 2003 the Respondent/Bank produced the wa it list Ex . M10 before this Tribunal marking it as a con fidential document. It is further contended on behalf ofthe 'etitioner that though the Respondent/Bank has alleged tl iat these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment tl hat their exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 CentralBank of India Vs. S. Satyam and Others the Supreme Courthasheld that Chapter V- A ofthe I. 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 onbehalfofthe Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection 'with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . M1 and the averments ofMW1 arid MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 ofEx . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B and C' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore ,the categorization in Clause 1 is illegal . Clause 1 (a) ofEx . 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 oftemporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staffmatters , copy ofwhich is marked as Ex . W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively.

7406

[PART II- SEC. 3(ii)] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 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 oftheRespondent/Bank and they are entitled to the benefits under theprovisions 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 ofAmerican Express International Banking Corporation wherein the Supreme Courthasheld that " the expression ' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal. In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of ettlements/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 .

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 clause2(00) ofthe I. D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitionerhas 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/ futurevacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he was arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank isarbitrary , 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 Comınissioner (Central ) , Hyderabad; it is neither a 18 (3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modifications ofEx . M1 to M4 made in terms of Ex .M6. Though the Respondent/Bank produced Ex. M7 andM11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner . Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . 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

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will of the parties and is a pointer to there being 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 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 .

exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore, the said settlements were not questioned by anyunion and the settlements were bank level settlements andoperate 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 theDivision Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration." Leamed counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.Presiding Officer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 (1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . Asettlement of the first category has limited application and binds merely parties to it and settlement ofthe second category made with a recognised majorityunion has extended application as it will be binding on all workmen of the establishment . Even in case of the first category , if the settlement was reached with a representative union of which the contesting workmenwere members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

[PART II-SEC. 3( ii) ] 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 orderunder reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which wouldprolong the industrial adjudication. The Labour Court 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 backwages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13. 1 find some force in the contention of the representative for the Petitioner. Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or 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, 1 find the Petitioner is not entitled to question the settlement.

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 ofthe bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end withthe expiry 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 ifa vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide onthe part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiryofthe 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) novacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified forthe post at the time of his appointment; (d) his recordof service since his appointment is not satisfactory. These are the additional problems indicatedby us in para 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 presumptionmay be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because 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 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 ofappointment in Govt. service in an existing or a future vacancy. In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and 7409 भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खंड 3 ( ii) ]

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 Secretary, State of Karnataka Vs. Uma Devi , the Supreme Court has held that "merely because a temporary employee or a casual 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 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 ofthe relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. Ithas to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation ofan employee upon the expiry ofpurported period ofprobation would not arise ." Further , in CDJ 2006 SC 395 Municipal Council, Sujanpur Vs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment ofthe Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that "the changes brought about by the 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 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question ofconfirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , ifthe candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never, survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby. Under these circumstances, there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 Himanshu Kumar Vidyarthi &Ors . Vs. State of Bihar and Ors . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come- first go ' is not mandatory but only directory, onsufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and therefore , the claim is to be dismissed with costs .

3677 Gl/07-64 7410

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007 /BHADRA 24, 1929

3 ( ii)]

[PART II-SEC.

regularisation or reinstatement in the Respondent/Bank as alleged by him. Therefore, I find this point against the Petitioner.

Point No. 2 :

subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore ."

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

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 K. Jeevan WW2 Sri V. S. Ekambaram

For the Respondent : MW1 Sri C. Mariappan 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation ofhis service . Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities 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.

MW2 Sri C. Ramalingam

Documents Marked:

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on dailywages based on Ex. W4 .

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 ofthe Respondent/Bank.

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 ofZonal Office, Chennai about filling up of vacancies of messenger posts .

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

W8 Nil

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

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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim

W9 22-03-84 Xerox copy of the service certificate issuedby Chindadripet branch:

7411 [ भाग II-खंड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्रः 24, 1929

Ex. No. Date

Description

W10 13-08-84

W28 07-02-06

Xerox copy of the service certificate issued by Anna Road branch .

W11 07-07-88

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

Xerox copy of the service certificate issued by Anna Road branch .

W29 31-12-85

W12 08-08-96

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

Xerox copy of the service certificate issued by Ambattar Industrial Estate branch.

For the Respondent/Management :

W13 20-08-96

Ex. No. Date

Description

Xerox copy of the service certificate issued by Anna Nagar branch .

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

W14 17-04-97

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

Xerox copy of the service certificate issued by Ambattur Industrial Estate branch .

M3 27-10-88 Xerox copy of the settlement.

W15 Nil

Xerox copy of the settlement.

09-01-91

Xerox copy of the settlement .

30-07-96

M6 09-06-95

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

Xerox copy of the minutes ofconciliation proceedings.

W16 Nil

M7 28-05-91

Xerox copy ofthe Vol . III Referencebook onstaffmatters 31-12-95 .

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

06-03-97

W17

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-V . Muralikannan.

M9 10-07-99

W18 06-03-97

Xerox copy ofthe 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-K. Subburaj.

Xerox copy of the wait list of Chennai Module.

W19 06-03-97

M11 25-10-99

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

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

W20 17-03-97 Xerox copy of the service particulars--- J. Velmurugan.

नई दिल्ली, 23 अगस्त, 2007

W21 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

W22 31-03-97 Xerox copy of the appointment order to Sri G. 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 .

का. आ. 2668. औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 196/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । W24 13-02-95

[सं. एल-12012/640/1998- आई आर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list.

New Delhi , the 23rd August, 2007 W25 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W26 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W27 09-07-92

S. O. 2668.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 196/ 2004) of the Central Government Industrial Tribunal-cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management ofStateBank of India and their workaen, which was received by the Central Government on 23-8-2007 .

Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms creation of part time general attendants .

[No. I - 12012/640/1998 - IR (B - I ) ] AJAY KUMAR, Desk Officer 7412

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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

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

Wednesday, the 31st January , 2007

PRESENT

K. Jayaraman, Presiding Officer

INDUSTRIAL DISPUTE ΝΟ . 196/2004

(Principal Labour Court CGID No.304/99)

[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) , betweenthe Management of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner

Sri M. Jayaraman

AND

: II Party/Management

The Assistant General Manager, State Bank of India, Region-I Trichirapalli

APPEARANCE

Forthe Petitioner : SriV. S. Ekambaram, Authorised Representative

For the Management : M/ s. K.S. Sundar , Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/640/98 - IR(B - I) dated 28-4-1999 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. 304/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution ofthis CGIT -cum - Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 196/2004.

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

"Whether the demand of the workman Shri M. Jayaraman, wait list No. 388 for restoring the wait list oftemporarymessengers in the establishment ofState Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ? "

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

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 andmedical examination. He was appointed on temporary basis atTirukkoilur branch from 3-8-1982 . 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 andAll India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Tirukkoilur branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But , they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From 3-8-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Tirukkoilur 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 irt failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/ Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number ofdays worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank 7413

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[भाग II- खंड 3 (ii) ]

before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522(4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to thetemporary workmen which amounts to violation ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing himto work under assumed name or by both which amounts tounfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of. regular employment in Respondent/Bank with all attendant benefits .

temporary employees who were appointed were engaged formore number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered . As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extendedupto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 458, he was not appointed . The said settlements were bona fide which were the only workable solution and isbinding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . 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 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 bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length ofengagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-7-88,7-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3) 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. 458 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 7414

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[PART II-SEC . 3 ( ii) ]

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 .

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 rulesofthe Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 388 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1 :

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisationof service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further , they have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 and IC 2248 Central Bank of India Vs. S. Satyam and Others the Supreme Courthasheld that Chapter V- A ofthe I. 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 onbehalfof the Petitioner that Ex. W2, W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex . Ml and the averments of MW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a rawdeal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 ofEx. M1 deals with categorization of retrenched temporarу 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 andhaving 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 Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concemed 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 [भाग II- खंड 3 (ii) ]

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employees into ' A, B and C' , but this categorization of ' A, B and C' is quite opposed to the doctrine of ' last come--first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal. Clause 1 (a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copyofwhich ismarked as Ex. W8 . Further , the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers. Even MW1 is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included intheMadras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according to MW1 wait list under Ex . M10 was prepared on2-5-92but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite 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 towriggle out the illegality committed or perpetrated by the Respondent/Bank by combining equals with unequals . It is further contended on behalfof the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non-messengerial candidates . Whilethe temporary employees were appointed

after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belong to two different and distinct categories . But, Ex .M3 provides for the same norms to the casuals as in the case of temporary employees in the måtter of absorption . Therefore , it is violative ofArticles 14 and 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 and 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 bythemto arrive at their respective seniority. From all these. things, it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf ofthe Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause2(00) 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 ofseniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank lias 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 7416

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular andtherefore , their retrenchment is illegal. In all these cases, the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements / lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group 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 of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the I. D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and aremadewith 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 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 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 questionedby any union and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. Butthe Andhra Pradesh High Court has held that " in the absence ofplea that the settlement reached in the course ofconciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others whereinthe Division Bench of the Bombay High Court has 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 was arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also 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 modifications of Ex . Ml to M4 made in terms of Ex . M6. Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further, though the Respondent/Management has examined two witnesses, the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of240 days andmore in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service oftheRespondent/Bank and they are entitled to the benefits under the provisions of I.D. Act. It is further contended on behalf of the Petitioner that though some of the Petitioners inthe connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer , sickle or pen 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/ [ भाग II-खंड 3 (ii) ]

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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 ..

held that " therefore a settlement arrived at in the course of the conciliation proceedings with à 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 of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.Presiding Officer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course ofconciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majorityunion has extended application as it will be binding on all workmen of the establishment . Even in case 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 bythe free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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, 1 find the Petitioner is not entitled to question the settlement.

expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 State ofHaryana and Ors .Vs. Piara Singh and Others wherein the Supreme Court has held that "now coming to the direction that all those adhoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence ofa vacancy. The direction in effect means that every ad hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancyis 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 thepost 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 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 actbut 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 thatquestion of confirmation or regularisation of an irregularly appointed candidate would arise , ifthe candidate concerned is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore, learned 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 ofcompetitive examination acquires d right ofappointment in Govt . service in an existing or a future vacancy. In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits. Inwhich, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services 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 saidpanel for permanent absorption in the services ofthe bank .Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus misconceived and therefore , the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively ." He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even ifa vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no rightto question the wait list and since there is no mala fide 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 7419 [भाग II-खंड 3 (ii) ]

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies andtherefore , they are not entitled to claim any absorption in the Respondent/Bank . Further, he relied on the rulings reported in AIR 1997 SCC 3657 Himanshu Kumar Vidyarthi & Ors . Vs. State of Bihar and Ors . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come-first.go' is not mandatory but only directory, on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retainingjuniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. Insuch circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and therefore , the claim is to be dismissed with costs.

the Supreme Court while laying down the law , has clearly held that " unless the appointment is in terms ofthe relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanentmerely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise. " Further , in CDJ 2006 SC 395 Municipal Council, Sujanpur Vs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law." Further, in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right uponhim tobe regularised in service ." The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore ."

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 thepreparationof 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, 7420

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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 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 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 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 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 M. Jayaraman

WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj .

[PART II SEC. 3 ( ii) ] Documents Marked:

Ex. No. Date

Description

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

W2 20-04-88 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 ofthe advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

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

W9 01-09-86 Xerox copy of the service certificate issued by Tirukkoilur branch.

W10 09-11-90 Xerox copy of the service certificate issued by Kavanur branch .

W11 02-12-93 Xerox copy of the service certificate issued by Kavanur branch .

W17 Nil

Xerox copy of the service particulars issued to Petitioner .

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

W16 06-03-97 Xerox copy ofthe call letter from Madurai zonal officę for interview of messenger post-K. Subburaj .

[ भाग II- खंड 3 (ii) ]

7421

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्र 24, 1929

Ex. No. Date

Description

W17 06-03-97. Xerox copy ofthe call letter from Madurai zonal office for interview ofmessenger post-J. Velmurugan.

W18 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

26-03-97

W19

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

W20 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W21 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month ofFebruary, 2005 wait list No. 395 ofMadurai Circle .

13-02-95

W22

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

09-11-92

W23

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 ofthe Bipartite meeting.

W25 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

W26 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W27 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

FortheRespondent/Management :

Date

Ex. No.

Description

Xerox copy of the settlement. 17-11-87

Xerox copy of the settlement.

M2 16-07-88

Xerox copy of the settlement. 27-10-88

Xerox copy of the settlement. 09-01-91

Xerox copy of the settlement .

30-07-96

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

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

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

M9 10-07-99 Xerox copy ofthe order ofSupreme Court in SLP No. 3082/99 .

Ex. No. Date

Description

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 & 16290/99 in W.A. No. 1893/99.

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2669.- औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 197/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था । [सं. एल-12012/353/1998- आई.आर (बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 23rd August, 2007

S. O. 2669. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 197/ 2004) of the Central Government Industrial Tribunal-cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen, which was received by the CentralGovernment on 23-8-2007.

[No. L- 12012 /353/ 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 ΝΟ . 197/2004 (Principal Labour Court CGID No. 20/99) [In the matter of the dispute for adjudication under clause (d) ofSub -section ( 1 ) and Sub - section 2(A) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947) , between theManagement of State Bank of India and their workmen]

BETWEEN

Sri K. Dhanasekaran : I Party/Petitioner AND

The Assistant General Manager, State Bank of India , ZonalOffice , Chennai : II Party/Management 7422

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

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

For the Petitioner

Sri V. S. Ekambaram, Authorised Representative

M/ s . K.S. Sundar, Advocates

For the Management :

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/353 /98 - IR (B - I) dated 3-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 20/99 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. 197/2004 .

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

"Whether the demand of the workman Shri K. Dhanasekaran, wait list No. 530 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 :-

informed orally tojoin at the branch where he initially worked as a class IV employee . From 18-1-1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Alandur branch, another advertisement by the Respondent/, Bankwas made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence, thePetitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence, since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware ofsettlement by which his services and number ofdays worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnantto Sections 25G and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522(4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to thetemporary workmen which amounts to violation ofrelevant provisions of circular . The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing 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 .

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre in StateBank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atRajaAnnamalaipuram branch from 18-1-1984. 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 additionto its counter , filed a copy of settlement under Section 18 (1 ) reached between management ofState Bank of India andAll India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Raja Annamalaipuram 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 [ भाग II-खंड 3 ( ii) ]

7423

भारत का राजपत्र : सितम्बर 15, 2007/भाद्र 24, 1929

The engagement of Petitioner was not authorised. The 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 lever 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 på :It is not correct to say that documents and identity of titioner 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 wait 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 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 .

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 ofthe Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length ofengagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was 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. 527 in wait list ofZonal Office, Chennai . So far 357 wait listed temporary candidates , out of 6744 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 Pétitioner 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 527 , he was not appointed. The said settlements

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act. As per recruitment rules of the Respondent/Bank, recruitment ofclass IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before theHigh 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 7424

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24 , 1929

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. 530for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary bessenger is justified ?"

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

Point No. 1:

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevantguidelines/circulars ofthe Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concernedandwhile the matter was pending in Writ Petition No. 542 (civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . 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 deniedan 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.

Respondent/Bank to the effect that temporary employees at branches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 and IC 2248 CentralBank ofIndia Vs. S. Satyam and Others the Supreme Court has held that Chapter V- A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmento whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalfof the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . M1 and the averments ofMW1 and MW2 and their testimonies during 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 ofEx . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B and C' is quite opposed to the doctrine of ' last come- first go' or ' first come-last go ' and therefore, the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes, cash coolies, water boys , sweepers etc.for absorption along with the other eligible categories oftemporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex. W8 . Further , the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers. Even MW1 is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared 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 7425 भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

[भाग II-खंड 3 ( ii) ]

Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointmentwas in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(00) ofthe I. D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which 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. 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 whichhas been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2 (e) 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 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 modifications ofEx . M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination 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 based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively. But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further, according to MWI wait list under Ex . M10 was prepared on2-5-92but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt withdailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , 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 combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates.While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx . 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 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in bythem to arrive at their respective seniority . From all these things, it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . Ml was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these

367757-56 7426

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

[PART II -SEC. 3( ii) ] has referred to voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial. Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalfofthe Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management ofAmerican Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub- staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour .

was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation, werebona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence 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 unionwillbe 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 ofthe conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs. PresidingOfficer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course ofconciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majorityunion has extended application as it will be binding on all workmen of the establishment . Even in case 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 7427 भारत का राजपत्र: सितम्बर 15 , 2007/ भाद्र 24, 1929

[ भाग II-खंड 3 ( ii ) ]

contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer 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 .

Orient PaperMills Vs. Industrial Tribunal & Ors , wherein theMadhya Pradesh High Court has held that "the Tribunal cannot go behindthe 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. SambanthanVs. Presiding Officer, Labour Court, Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that "the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which 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..

13. I find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribunal is entitled to go into the question whether the reliefprayed for by the Petitioner can be given to him or not ?But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

1 7428

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC. 3 (ii) ]

subject to fulfilling the qualifications, it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical actbut 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 itselfwas 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 nullity." Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption inthe Respondent/Bank . Further , he relied on the rulings reported inAIR 1997 SCC 3657 Himanshu Kumar Vidyarthi & Ors . Vs. State of Bihar and Ors. wherein the Supreme Courthasheld that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come-first go ' is not mandatory but only directory, onsufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors. " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence thathis juniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. Insuch circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory ." He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services 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 saidpanel for permanent absorption in the services ofthe bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus misconceived and therefore, the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointmenteven 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 ofthe wait list and he cannot pray for reinstatement as alleged by him. Further, he relied on the rulings reported in 1992 LAB IC 2168 State of Haryana and Ors. Vs. Piara Singh and Others wherein the Supreme Court has held that "now coming to the direction that all those 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 tothe existence ofa vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby aback door; (c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 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 7429

भारत का राजपत्र: सितम्बर 15, 2007/ भाद्र 24, 1929

[भाग II-खंड 3( ii) ]

Petitioner and therefore , the claim is to be dismissed with costs.

of service by that itself would not confer any legal right uponhim tobe regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

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.

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 betweenthe Respondent/Bank and Federation , at the time ofreference , they have not questioned the settlement nor the number allotted to each individual in the wait list . Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the :Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent/Bank.

18. Further, the representative for the Petitioner contended that in similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

THE GAZETTE OF INDIA : SEPTEMBER 15, 2007 /BHADRA 24, 1929

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 .

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WWI SriK . Dhanasekaran WW2 Sri V. S. Ekambaram Forthe Respondent : MW1 Sri C. Mariappan

MW2 Sri C. Ramalingam Documents Marked:

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines 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 of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

[PART II-SEC. 3 ( ii) ]

Ex. No. Date

Description

W9 24-04-84 Xerox copy of the service certificate issued by R. A. Puram Branch .

W10 17-04-86 Xerox copy of the service certificate given hy Royapettah branch of Respondent/Bank.

W11 17-12-90 Xerox copy of the service certificate issued by Triplicane branch .

W12 02-09-92 Xerox copy of the service certificate issued by Mannady branch .

W13 02-09-92 Xerox copy of the service certificate issued by Mannady branch .

W14 25-10-93 Xerox copy of the service certificate issuedby PurasawalkamBranch .

W15 03-10-94 Xerox copy of the service certificate issued by Triplicane Branch.

W16 19-03-96 Xerox copy of the service certificate issuedby Mint Terminus Branch .

W17 22-10-96 Xerox copy of the service certificate issued by Triplicane branch.

W18 10-11-97 Xerox copy of the service certificate issued by Alandur branch.

W19 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

W20 Nil

Xerox copy of the Vol . III of Reference book on staffupto 31-12-95 .

06-03-97

W21

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

W22 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W23 06-03-97 Xerox copy ofthe 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 .

Feb. 2005

W27

Xerox copy of the pay slip of T. Sekar for the month ofFebruary, 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.

[भाग II-खंड 3 (ii) ]

7431

भारत का राजपत्र : सितम्बर 15, 2007/ भाद्रं 24, 1929

Ex. No. Date

Description

New Delhi , the 23rd August, 2007 W29 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W30 09-07-92 Xerox copy ofthe minutes ofthe Bipartite meeting.

S. O. 2670. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 199/ 2004) of the Central Government Industrial Tribunal- cum- Labour Court, Chennai as shown in the Annexure , in the Industrial Dispute between the management of State Bank of India and their workmen, which was received by the Central Government on 23-8-2007 .

[No. L- 12012/356/ 1998 - IR(B- 1)] AJAY KUMAR, Desk Officer W31 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

ANNEXURE

W32 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

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

Wednesday, the 31st January, 2007 W33 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

PRESENT

For theRespondent/Management :

K. Jayaraman, Presiding Officer Ex. No. Date

Description

INDUSTRIAL DISPUTE ΝΟ . 199/2004 M1 . 17-11-87 Xerox copy of the settlement .

(Principal Labour Court CGID No. 22/99) 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.

[In the matter of the dispute for adjudication under clause (d) ofSub - section ( 1 ) and Sub- section 2(A) of Section 10 ofthe Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and theirworkmen] M5 30-07-96. Xerox copy of the settlement.

BETWEEN

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings .

I Party/Petitioner

Sri G.Gopi

AND

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

:II Party/Management M8 15-05-98 Xerox copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa .

The Assistant General Manager, StateBank of India , Z.O. Chennai .

M9 10-07-99 Xerox copy ofthe order ofSupreme Court in SLP No. 3082/99 ,

APPEARANCE

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

For the Petitioner

Sri V. S. Ekambaram , Authorised Representative M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99 .

For the Management : M/s . K.S. Sundar, Advocates

AWARD

नई दिल्ली, 23 अगस्त, 2007

का. आ. 2670.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार स्टेट बैंक ऑफ इंडिया के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 199/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था ।

[सं. एल -12012/356/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

The Central Government , Ministry of Labour vide OrderNo. L- 12012/ 356/ 98 - IR(B - I) dated 03-02-1999 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. 22/99 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. 199/2004.

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THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24, 1929

[PART II-SEC . 3 (ii)] 2. The Schedule mentioned in that order is as follows:-

"Whether the demand of the workman Shri G. Gopi , waitlist No. 646 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporarymessenger is justified ? If so, to what relief the said workman is entitled ?"

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

Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware ofsettlement by which his services and number of days worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the ' conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnantto Sections 25G and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies. The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation ofrelevant provisions of circular . The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment ofpetty cash or by directing him to work under assumed name or by both which amounts tounfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

[ भाग II- खंड 3(ii) ]

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.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules ofthe Respondent/Bank, recruitment ofclass IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court 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. 646 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored by Employment Exchange and they having been called for proceedings and minutes were drawn under Section 18 (3) ofI. D.Act. Interms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 641 in wait list ofZonal Office , Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to othereligibility 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 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and ' enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 641 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Workmen) Act , 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages /casual labour . Further , for circle

3677G107-67 7434

THE GAZETTE OF INDIA: SEPTEMBER 15 , 2007/BHADRA 24 , 1929

[PART II-SEC . 3 ( ii )] interview and having been selected and wait listed interms ofthe relevant guidelines/circulars ofthe Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542( civil ) 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . 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 deniedanopportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalfof the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions 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. 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 hisfuture withthe settlements . Further, Clause 1 ofEx . M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of 'A, B and C' is quite opposed to the doctrine of ' last come first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) ofEx . Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes, cash coolies , water boys , sweepers etc.for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention ofthe 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 inEx . W2 four types of waiting lists have tobe prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 in this case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers. Even MW1 is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe Madras circle since the High Court order is there, but he has not produced any document in support of the so called non - inclusion except his bald statement. Further, according to MWI wait list under Ex. M10 was prepared on2-5-92 but there is no pleading in the Counter Statement with regardto this wait list . Further the Hon'ble High Court hasheld in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , 7435 भारत का राजपत्र: सितम्बर 15, 2007/भाद्र 24, 1929

[भाग II-खंड 3 ( ii ) ]

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 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 modifications of Ex . M1 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 WMPNo . 11932/91 and W. P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. 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 oftheRespondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf ofthe Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since 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 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 by the Respondent/Bank by combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex. M10 comprises of both messengerial and non- messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories. But, Ex . M3 provides for the same norms to the casuals as in the case of temporary- employees in the matter of absorption . Therefore , it is violative of Articles 14 and 16 of Constitution ofIndia. Therefore , the Petitioner contended that preparation of Ex . M10 namely wait list is not in conformity with the instructions ofEx. M2 and non- preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published even after the Court order in WMP No. 11932/91 and 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 bythem to arrive at their respective seniority. From all these things, it is clear that Ex. M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all , Ex . Ml was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document. It is further contended on behalfof 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 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(00) of the I. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though thePetitioner has performed the duties continuously which is still in existence, the cafegorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulingsreported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bankof India and Others wherein the Supreme Court has held that "to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and 7436

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007 /BHADRA 24, 1929

[PART II SEC. 3 (ii)] have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management ofAmerican Express International Banking Corporation wherein the Supreme Courthasheld that "the expression ' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal. In all these cases, the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/lapsing of wait lists and out ofthese Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12(3) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen." Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others whereinthe Division Bench of the Bombay High Courthas 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. " 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 reliedon the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs. PresidingOfficer and Others wherein the Supreme Court has held that " settlements are divided into two categories namely ( 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 ofconciliation 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 majorityunionhas extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached with a representative union ofwhich the contesting workmen were members and 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 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 [भाग II-खंड 3( ii) ]

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.

7437

भारत का राजपत्र: सिंतम्बर 15, 2007/ भाद्र 24, 1929

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 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 candecide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitledto 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 .

THE GAZETTE OF INDIA : SEPTEMBER 15,2007/BHADRA 24, 1929

[PART II-SEC. 3 ( ii)]

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, learne confirming these counsel for the Respondent contended that these temporary employees were appointed only due to exigencies andthey have not appointed against any regular vacancy and they have only appointed in leave vacancies 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 dailywage employees and have no right to the posts, their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come-first go ' is not mandatory but only directory, onsufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors. " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence thathis juniors were made permanent by the Respondent/ Bank . Anyhow, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances, the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and therefore , the claim is to be dismissed with costs.

app 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 ofhis appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not madeby following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employmentwith open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or 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 onthe rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists" and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide onthe part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry ofthe date namely 31-3-1997, the Petitioner cannot plead for restoration ofthe wait list and he cannot pray for reinstatement as alleged by him . Further, he relied onthe rulingsreported in 19921992 1LAB IC 2168 State ofHaryana and Ors . Vs. PiaraPiara 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 tothe existence of a vacancy. The direction in effect means that every ad hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b ) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby aback door; (c) he was not eligible and qualified for thepost 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 reliefmust be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . Thus, the Supreme Court set aside the orders 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 itselfwas illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of भारत का राजपत्र: सितम्बर 15, 2007 / भाद्र 24, 1929

[ भाग II-खंड 3( ii) ]

casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that "regularisation furthermore, is not a mode of appointment and ifappointment is made without following the rules, the same being a nullity , the question of confirmation ofan employee upon the expiry of purported period ofprobation would not arise. " Further , in CDJ 2006 SC 395 Municipal Council, Sujanpur Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctionedpost . Being a ' State' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules.Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law." Further , in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right uponhim to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions 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 . "

7439 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 contendedthat 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 forthe 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 240daysofcontinuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner. Point No. 2:

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

21. Thus, the reference is answered accordingly. K. JAYARAMAN, Presiding Officer

17 Witnesses Examined : Forthe Petitioner

For the Respondent : MW1 Sri C. Mariappan

:WW1 Sri G. Gopi WW2 Sri V. S. Ekambaram MW2 Sri C. Ramalingam

Documents Marked:

Ex. No. Date

Description

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

W2

20-04-88

16. Relying on all these decision , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation ofhis service. Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the 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 inthe settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation ofwait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the leamed counsel for the Respondent. Though in the Claim Statement, 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 .

7440

THE GAZETTE OF INDIA : SEPTEMBER 15 , 2007/BHADRA 24, 1929

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

Description

Ex. No. Date

Description

W4 01-05-91

W25 09-11-92

Xerox copy ofthe advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91

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

W26 09-07-92

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

Xerox copy ofthe minutes ofthe Bipartite meeting.

W6 15-03-97

W27 09-07-92

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

W7 25-03-97

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

W28 07-02-06

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

W8 Nil

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

W29 31-12-85

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

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

W9 11-11-82

For the Respondent/Management :

Xerox copy of the service certificate issuedby Madhurantakam branch.

Ex. No. Date

Description

W10 24-01-93

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

Xerox copy of the service certificate issued by Chamiers Road branch.

M2 16-07-88

W11 20-04-94

Xerox copy of the settlement.

M3 27-10-88

Xerox copy of the service certificate issued by Saidapet branch.

Xerox copy of the settlement .

M4 09-01-91

W12 26-09-96

Xerox copy of the settlement.

Xerox copy of the service certificate issued by T. Nagar branch.

30-07-96 Xerox copy of the settlement .

W13 21-11-97

09-06-95

Xerox copy of the service certificate issued by T. Nagar branch .

Xerox copy of the minutes ofconciliation proceedings.

W14 18-04-98

M7 28-05-91

Xerox copy of the service certificate issued by Mint Terminus branch.

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

W15 Nil

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

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

Nil

M10

W16 Nil

Xerox copy of the wait list of Chennai Module .

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

M11 25-10-99

W17 06-03-97,

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

Xerox copy of the call letter fromMadurai zonal office for interview of messenger postV. Muralikannan .

नई दिल्ली, 31 अगस्त, 2007

W18 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W19 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J. Velmurugan .

का. आ. 2671.- राष्ट्रपति, श्री नागेन्द्र कुमार को 14-08- 2007 ( पूर्वाह्न ) से 65 वर्ष की आयु पूरे होने अथवा अगले आदेशों तक, जो भी पहले हो , केन्द्रीय सरकार औद्योगिक न्यायाधिकरण-सह- श्रम न्यायालय , धनबाद- II के पीठासीन अधिकारी के रूप में नियुक्त करते हैं ।

W20 17-03-97, Xerox copy of the service particulars-- J.Velmurugan.

W21 26-03-97

[सं. ए-12011 /02/2006- सीएलएस- II ] पी. के. ताम्रकार, अवर सचिव Xerox copy of the letter advising. selection ofpart time Menial-G. Pandi.

W22 31-03-97

New Delhi, the 31st August , 2007 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 of Madurai Circle .

W24 13-02-95

S.O. 2671. The President is pleased to appoint Shri Nagendra Kumar as Presiding Officer of the Central Government Industrial Tribunal- cum- Labour Court , Dhanbad- II w.e.f. 14-8-2007 (F.N. ) till the date he attainş 65 years ofage or until further orders , whichever is earlier.

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

[No:A- 12011 /02/2006-CLS - II] P. K. TAMRAKAR, Under Secy .

Printed by the Manager , Govt. of India Press , Ring Road , Maya Puri , New Delhi - 110064 and Published by the Controller of Publications , Delhi - 110054 , 2007